MANOJ & ORS versus STATE OF MADHYA PRADESH

[2022] 9 S.C.R. 452

[2022] 9 S.C.R.

MANOJ & ORS.

STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 248-250 of 2015)

BMAY 20, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDBELA. M. TRIVEDI, JJ.]

Sentence / Sentencing – Penal Code, 1860 – ss.302, 397 –Triple murder, in course of robbery – Three accused – Trial CourtCconvicted the accused-appellants u/s. 302 IPC and imposed deathpenalty on them – High Court confirmed the conviction – On appeal,held: Both the trial Court and High Court failed to provide aneffective sentencing hearing to the accused at the relevant stagewhich is right u/s 235(2) CrPC – The crime that the appellantsDwere held guilty of, was heinous, and its execution was vicious andcruel – The repeated stabbings of two of the deceased almost in afrenzy on the one hand and the defenceless state of the victims, onthe other, highlights that the accused were willing to go ahead withtheir plans of robbing after eliminating the three women – At thesame time, the young age of the accused at the time of the incidentEand lack of criminal antecedents cannot be lost sight of – Prosecutioncase is silent on any real motive that may have instigated or movedthe three accused to have pre-planned for the commission of murderother than robbery itself – Death sentence of all three accusedcommuted to life imprisonment for minimum term of 25 years –FArms Act – s.27.

Criminal Trial – Death Sentence – When to be awarded –Discussed – two-step process has to be followed to determinewhether case deserves death sentence – Firstly, that the casebelongs to the ‘rarest of rare’ category, and secondly, that the optionGof life imprisonment would simply not suffice – For the first step,the aggravating and mitigating circumstances would have to beidentified and considered equally – For the second, the court hasto consider whether the alternative of life imprisonment wasunquestionable foreclosed as the sentencing aim of reformation wasunachievable, for which the State must provide material.H

Code of Criminal Procedure, 1973 – Test IdentificationParade – TIPs are meant to test witness veracity and their capabilityto identify unknown persons – TIPs should be conducted at theearliest possible time to eliminate the chance of accused being shownto witnesses before the identification parade, which might otherwiseaffect such witnesses’ memory – No provision of law enables anaccused to claim TIP as matter of right – Delay or failure in holdingTIP ipso facto does not render the evidence inadmissible orunacceptable, however it affects the credibility and weight attachedto such identification.

Evidence Act, 1872 – Circumstantial Evidence – Principlesapplicable to appreciation of evidence – The correct approach ofcourts trying criminal cases involving circumstantial evidence shouldbe that the circumstances alleged, be fully established – All the factsso established should be consistent only with hypothesis of the guiltof the accused – Circumstances should be conclusive and of suchtendency that they should be such as to exclude every hypothesisbut the one proposed to be proved.

Criminal Trial – Practice and Procedures – Omission ofprosecution witness to state fact – Effect of: The omission of someof the prosecution witnesses to mention particular fact, orcorroborate something, which is deposed to by other witnesses doesnot ipso facto favour an accused – However, more important iswhether the omission to depose about fact is so fundamental thatthe prosecution version becomes shaky and incredulous.

Code of Criminal Procedure, 1973 – s. 24 – Role of PublicProsecutor in Criminal Trial – Public prosecutor occupies statutoryoffice of high regard – They are not part of the investigating agency,rather an independent statutory authority who serve as officers tothe court – The role of the public prosecutor is intrinsically dedicatedto conducting fair trial and not for ‘thirst to reach the case inconviction’.

Code of Criminal Procedure, 1973 – ss.172, 173 –Maintenance of case diary mandatory – Police have the power toinvestigate freely and fairly, in the course of which, it is mandatoryto maintain diary where the day-to-day proceedings are to berecorded with specific mention of time of events, places visited,departure and reporting back, statements recorded, etc – Criminal

ACourt is empowered to summon these diaries u/s 172(2) for purposeof inquiry or trial, s. 173(3) makes it clear that the accused cannotclaim any right to peruse them, unless the police themselves, rely onit to refresh their memory or if the court uses it for contradicting thetestimony of the police officers.

Criminal Trial – Fundamental canons of criminaljurisprudence founded on Arts. 20 and 21 of the Constitution requirenot just the investigating agency but also courts in their ownindependent field, to ensure that investigation is fair and does nothamper the individual’s freedom, except in accordance with law,i.e., ensure adherence to the rule of law.C

Criminal Trial – Practical guidelines to collect mitigatingcircumstances – Trial Court must elicit information from the accusedand the State both – The State must for an offence carrying capitalpunishment - at the appropriate stage, produce material which ispreferably collected beforehand, before the Sessions CourtDdisclosing psychiatric and psychological evaluation of the accused– This will help establish proximity to the accused person’s frame ofmind – The State must in time-bound manner collect additionalinformation pertaining to the accused –Information regarding theaccused’s jail conduct and behaviour, activities the accused involvedEthemselves in, and other related details should be called for in theform of report from the relevant jail authorities.

Code of Criminal Procedure, 1973 – Sentencing – An effectivesentencing hearing to the accused at the relevant stage is rightunder s.235(2).FPartly allowing the appeals, the Court

HELD:1. The goal of reformation is ideal, and what societymust strive towards – there are many references to it pepperedin this court’s jurisprudence across the decades – but what islacking is concrete framework that can measure and evaluateGit. Unfortunately, this is mirrored by the failure to implement prisonreforms of meaningful kind, which has left the process ofincarceration and prisons in general, to be space of limitedpotential for systemic reformation. The goal of reformativepunishment requires systems that actively enable reformationand rehabilitation, as result of nuanced policy making. As smallH

step to correct these skewed results and facilitate betterevaluation of whether there is possibility for the accused to bereformed (beyond vague references to conduct, familybackground, etc.), it is necessary to frame practical guidelinesfor the courts to adopt and implement, till the legislature andexecutive, formulate coherent framework through legislation.These guidelines may also offer guidance or ideas, that such alegislative framework could benefit from, to systematically collectand evaluate information on mitigating circumstances. [Para 212][573-E-H]2.1. There is urgent need to ensure that mitigatingcircumstances are considered at the trial stage, to avoid slippinginto retributive response to the brutality of the crime, as isnoticeably the situation in majority of cases reaching theappellate stage. To do this, the trial court must elicit informationfrom the accused and the state, both. The state, must - for anoffence carrying capital punishment - at the appropriate stage,produce material which is preferably collected beforehand, beforethe Sessions Court disclosing psychiatric and psychologicalevaluation of the accused. This will help establish proximity (interms of timeline), to the accused person’s frame of mind (ormental illness, if any) at the time of committing the crime andoffer guidance on mitigating factors (1), (5), (6) and (7) spelledout in Bachan Singh. Even for the other factors of (3) and (4)- anonus placed squarely on the State- conducting this form ofpsychiatric and psychological evaluation close on the heels ofcommission of the offence, will provide baseline for the appellatecourts to use for comparison, i.e., to evaluate the progress of theaccused towards reformation, achieved during the incarcerationperiod. [Paras 213 & 214][574-B-E]

2.2. The State must in time-bound manner, collectadditional information pertaining to the accused. An illustrative,but not exhaustive list is as follows: a) Age; b) Early familybackground (siblings, protection of parents, any history of violenceor neglect); c) Present family background (surviving familymembers, whether married, has children, etc.; d) Type and levelof education; e) Socio-economic background (including conditions

Aof poverty or deprivation, if any.); f) Criminal antecedents (detailsof offence and whether convicted, sentence served, if any); g)Income and the kind of employment (whether none, or temporaryor permanent etc); h) Other factors such as history of unstablesocial behaviour, or mental or psychological ailment(s), alienationof the individual (with reasons, if any) etc. This information shouldBmandatorily be available to the trial court, at the sentencing stage.The accused too, should be given the same opportunity to produceevidence in rebuttal, towards establishing all mitigatingcircumstances. [Para 215][574-E-H; 575-A-C]

2.3 Information regarding the accused’s jail conduct andCbehaviour, work done (if any), activities the accused has involvedthemselves in, and other related details should be called for inthe form of report from the relevant jail authorities (i.e., probationand welfare officer, superintendent of jail, etc.). If the appeal isheard after long hiatus from the trial court’s conviction, or HighDCourt’s confirmation, as the case may be – fresh report (ratherthan the one used by the previous court) from the jail authoritiesis recommended, for an more exact and complete understandingof the contemporaneous progress made by the accused, in thetime elapsed. The jail authorities must also include freshpsychiatric and psychological report which will further evidenceEthe reformative progress, and reveal post-conviction mentalillness, if any. [Para 216][575-C-E]

3.1. In the instant case, there can be no doubt that the crimecommitted by the three accused was brutal, and grotesque. Thethree defenceless victims were women of different age groupsF(22, 46, 76 years) who were caught off-guard and severelyphysically assaulted, resulting in their death, in the safety andcomfort of their own home. To have killed three generations ofwomen from the family of PW-1, is without doubt, grotesque.The manner of the offence was also vicious and pitiless – AshleshaGand Rohini, were stabbed repeatedly to their death, while Meghawas shot point blank in the face. The post-mortem (Ex. P44)reflects that the stab wounds were extensive – ranging acrossthe bodies of the victim. The extensive bleeding at the crimescene further reflects cruel and inhumane manner of attack,against the three women. The crime in itself, could no doubt becharacterised as “extremely brutal, grotesque, diabolical,revolting or dastardly manner so as to arouse intense and extremeindignation of the community” as defined in Machhi Singh. Theseare the aggravating circumstances. On an application of theBachan Singh test (as clarified and explained, in numerousdecisions), however, the mitigating circumstances need to beconsidered (and that too, liberally and expansively). [Para 218 &219][576-C-G]

3.2. It is unfortunate to note that both the trial Court, andHigh Court, failed to provide an effective sentencing hearing tothe accused, at the relevant stage, which is right under Section235(2) CrPC recognised by this court in several cases. In fact, itwas argued by the accused that the trial court in contravention ofthis court’s judgments, had proceeded to hear on sentencingalmost immediately, depriving the accused of the opportunity toput forth their case for less stringent sentence. The trial courtorder on sentencing, records in passing - the plea of ‘young age’and ‘socio-economic factors’ as mitigating circumstances, butreflects, at best, mechanical consideration of the same. Swayedby the brutality of the crime and “shock of the collective andjudicial conscience”, the High Court affirmed imposition of thedeath penalty solely on the basis of the aggravating circumstancesof the crime, with negligible consideration of mitigatingcircumstances of the criminal. This is in direct contravention ofBachan Singh. [Para 223][578-B-E]

3.3. The crime that the appellants have been held guilty of,is heinous; its execution was vicious and cruel, by any stretch ofimagination. The deception practised by the appellants, in enteringthe flat, and, when encountering resistance, attacking the threewomen, was calculated and ruthless. The repeated stabbings oftwo of the deceased, almost in frenzy, on the one hand, and thedefenceless state of the victims, on the other, highlights that theaccused were willing to go ahead with their plans (of robbing)after eliminating the women of three generations. No doubt, twoof the victims appear to have put up resistance, if one looks at

Athe stab wounds inflicted all over their bodies, including on theirarms and faces. They were unarmed and weak. At the same time,the young age of the accused at the time of the incident (35, 20,22 respectively) and lack of criminal antecedents (except in thecase of Manoj, who was allegedly involved in case of petty theft)cannot be lost sight of. Further, the prosecution case is silent onBany real motive that may have instigated or moved the threeaccused to have pre-planned for the commission of murder – otherthan robbery, itself. This coupled with the fact that Rahul wasshot in his leg during the commission of the crime, indicates thatperhaps it is reasonable to assume that they were amateurs in aCrobbing-gone-wrong situation, who were not intent on taking thelives of these three women. One can surmise that having venturedto rob, perhaps they did not contemplate the kind of resistancethat was put up by the victims, which led them to act the way theydid, to continue with their plan, and ensure that the victims did notsurvive to tell the tale. [Paras 224 & 225][578-D-F; 579-A-D]D

3.4. The reports received from the Superintendent of Jailreflect that each of the three accused, have record of overallgood conduct in prison and display inclination to reform. It isevident that they have already, while in prison, taken stepstowards bettering their lives and of those around them, whichEcoupled with their young age unequivocally demonstrates thatthere is in fact, probability of reform. On consideration of allthe circumstances overall, it is found that the option of lifeimprisonment is certainly not foreclosed. Imposition of deathsentence would be unwarranted in the present case. It would beFappropriate and in the overall interests of justice to commutethe death sentence of all three accused, to life imprisonment fora minimum term of 25 years. [Para 226 & 228][579-D-E; 580-A-

Bachan Singh v. State of Punjab (1980) 2 SCC 684;GMachhi Singh and Others v. State of Punjab, [1983]SCR 3 413; Sharad Birdichand Sarda v. State ofMaharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;Anil v. State of Maharashtra (2014) 4 SCC 69 : [2014]3 SCR 34 and Rajesh Kumar v. State (NCT of Delhi)(2011) 13 SCC 706 – relied on.H

Umesh Tukaram Padwal & Anr. v. State of Maharashtra(2019) 8 SCC 567; Lal Singh and others v. State ofU.P 2003 (12) SCC 554; Muthuswami v. State of MadrasAIR 1954 SC 4; Mohammed Abdul Hafeez v. State ofAP (1983) 1 SCC 143; Mohd. Aman & Anr. v. State ofRajastha (1997) 10 SCC 44; Chandran @ Surendran& Anr. v. State of Kerala (1991) Supp (1) SCC 39; NoorAga v.State of Punjab (2008) 16 SCC 417 : [2008] 10SCR 379; Chunthuram v. State of Chhattisgarh (2020)10 SCC 733 : [2020] 8 SCR 1071; Reena Hazarika v.State of Assam (2019) 13 SCC 289 : [2018]13 SCR 1108; Suresh Sakharamb Nangare v. State ofMaharashtra (2012) 9 SCC 249 : [2012] 7 SCR 1186;State of Andhra Pradesh v.Dr. M.V. Ramana Reddy &Ors (1991) 4 SCC 536 : [1991] 3 SCR 600; RajeshGovind Jagesha v. State of Maharashtra (1999) 8 SCC428 : [1999] 4 Suppl. SCR 277; Matru @ GirishChandra v. State of Uttar Pradesh (1971) 2 SCC 75 :[1971] 3 SCR 914; Pritam Singh v. State of PunjabAIR 1956 SC 415; Balbir Singh v. State of Punjab 1996(6) SCALE 72; Hari Om v. State of Uttar Pradesh (2021)4 SCC 345; SMoosa Patel v. State of Gujarat (2011) 2SCC 198 : [2011] 2 SCR 121; Puran v. State of PunjaAIR 1953 SC 459 Darya Singh v. State of Punjab [1964]7 SCR 397; Jarnail Singh v. State of Punjab (2009) 9SCC 719 : [2009] 13 SCR 774; Malkhan Singh v. Stateof MP. (2003) 5 SCC 746 : [2003] 1 Suppl. SCR 443;Ramanathan v. State of Tamil Nadu (1978) 3 SCC 86 :[1978] 3 SCR 694; Shyamlal Ghosh v. State of WestBengal (2012) 7 SCC 646 : [2012] 10 SCR 95; Sonvirv. State (NCT) of Delh (2018) 8 SCC 24 : [2018] 7SCR 830; Ashish Jain & Ors. v. Makrand Singh (2019)3 SCC 770 : [2019] 1 SCR 345; Hari Om @ Hero vState of UP (2021) 4 SCC 345; Dharam Deo Yadav v.State of UP (2015) 5 SCC 509; Pantangi BalaramaVenkata Ganesh v. State of Andhra Pradesh (2009) 14SCC 607 : [2009] 11 SCR 636; Santosh Kumar Singhv. State Through CBI (2010) 9 SCC 747 : [2010] 13SCR 901; Inspector of Police, Tamil Nadu v. John David

(2011) 5 SCC 509 : [2011] 7 SCR 354; Krishan KumarMalik v. State of Haryana (2011) 7 SCC 130 : [ 2011]8 SCR 774; Surendra Koli v. State of Uttar Pradesh &Ors. (2011) 4 SCC 80 : [2011] 2 SCR 939; Sandeep v.State of Uttar Pradesh (2012) 6 SCC 107 : [2012] 5SCR 952; Rajkumar v. State of Madhya Prades (2014)5 SCC 353 : [2014] 3 SCR 212; Mukesh & Ors. v.State for NCT of Delhi & Ors. (2017) 6 SCC 1 : [2017]6 SCR 1; Anil v. State of Maharashtra (2014) 4 SCC69 : [2014] 3 SCR 34; Pattu Rajan v. The State of TamilNad (2019) 4 SCC 771 : [2019] 5 SCR 535; State ofBihar v. Kapil Singh [1968] 3 SCR 310; Mohd. Amanv. State of Rajasthan (1997) 10 SCC 44; Balbir Singhv State of Punjab 1996 (6) SCALE 72; Hanumant v.The State of Madhya Pradesh AIR 1953 SC 343; Tufailv. State of Uttar Pradesh (1969) 3 SCC 198; Ram Gopalv. State of Maharashtra AIR 1972 SC 656; State ofU.P. v. Anil Singh (1988) Supp SCC 686; C. Muniappanv. State of Tamil Nadu (2010) 9 SCC 567 : [2010] 10SCR 262; Surajit Sarkar v. State of West Bengal (2013)2 SCC 146 : [2012] 13 SCR 634; Shanker & Ors. v.State of Madhya Prades (2018) 15 SCC 725 : [2018] 6SCR 814; Harijana Thirupala and Ors. v. PublicProsecutor, High Court of A.P. Hyderabad (2002) 6SCC 470 : [2002] 1 Suppl. SCR 379; Rammi @Rameshwar v. State of Madhya Prades (1999) 8 SCC649 : [1999] 3 Suppl. SCR 1; Appabhai and Anr. v.State of Gujarat 1988 Supp (1) SCC 241; Vinod Kumarv. State of Haryana (2015) 3 SCC 138 : [2015] 1SCR 328; Shivaji Sahebrao Bobade v. State ofMaharashtr (1973) 2 SCC 793 : [1974] 1 SCR 489;Kartike Malhar v. State of Bihar (1996) 1 SCC 614 :[1995] 5 Suppl. SCR 239; Ramashish Yadav v. State ofBihar (1999) 8 SCC 555 : [1999] 2 Suppl. SCR 285;Hitendra Vishnu Thakur v. State of Maharashtra (1994)4 SCC 602 : [1994] 1 Suppl. SCR 360; DeepakAggarwal v. Keshav Kaushik (2013) 5 SCC 277 : [2013]1 SCR 402; Shiv Kumar v. Hukam Chan (1999) 7 SCC467 : [1999] 2 Suppl. SCR 81; Siddharth Vasisht @

Manu Sharma v. State of NCT Delhi (2010) 6 SCC 1 :[2010] 4 SCR 103; Mukund Lal v. Union of India 1989Supp (1) SCC 622 : [1988] 3 Suppl. SCR 524; MalkiatSingh v. State of Punjab (1991) 4 SCC 341 : [1991] 2SCR 256; Inadequacies and Deficiencies, in re v. Stateof Andhra Pradesh (2021) 10 SCC 598; JagmohanSingh v. State of Uttar Prades (1973) 1 SCC 20 : [1973]2 SCR 541; Santosh Kumar Satishbhushan Bariyar v.State of Maharashtra (2009) 6 SCC 498 : [2009] 9SCR 90;Shankar KisanraoKhade v. State ofMaharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949;Swamy Shraddananda (2) @ Mural Manohar Mishrav. State of Karnataka (2008) 13 SCC 767 : [2008] 11SCR 93; Sangeet & Anr. v. State of Haryana (2013) 2SCC 452 : [2012] 13 SCR 85; Mohd. Farooq AbdulGafur & Anr. v. State of Maharashtra (2010) 14 SCC641 : [2009] 12 SCR 1093; Chhannu Lal Verma v. Stateof Chattisgarh (2019) 12 SCC 438 : [2018] 14SCR 355; Swamy Shraddananda (2) @ Mural ManoharMishra v. State of Karnataka (2008) 13 SCC 767 :[2008] 11 SCR 93; Sangeet & Anr. v. State of Haryana(2013) 2 SCC 452 : [2012] 13 SCR 85; Manoharan v.State by Inspector of Police, Variety Hall Police Station,(2019) 7 SCC 716 : [2019] 18 SCR 1007; Sangeet &Anr. v. State of Haryana (2013) 2 SCC 452 : [2012] 13SCR 85; Shankar Kisanrao Khade v. State ofMaharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949;Rajendra Pralhadrao Wasnik v. State of Maharashtra(2019) 12 SCC 460 : [2018] 14 SCR 585; Ravji v. Stateof Haryan (1996) SCC 2 175 : [1995] 6 Suppl. SCR195; Surja Ram v. State of Rajasthan (1996) 6 SCC271 : 1996] 6 Suppl. SCR 783; Dayanidhi Bisoi v. Stateof Orissa (2003) 9 SCC 310; Mohan Anna Chavan v.State of Maharashtra, (2008) 7 SCC 561 : [2008] 8SCR 1072; Bantu v. State of Uttar Pradesh, (2008) 11SCC 113 : [2008] 11 SCR 184; Shivaji v. State ofMaharashtra, (2008) 15 SCC 268; State of UttarPradesh v. Sattan @ Satyendra and Ors. (2009) 4 SCC736 : [2009] 3 SCR 643; Rajesh Kumar v. State (2011)

13 SCC 706; Swamy Shraddananda (2) v. State ofKarnataka (2008) 13 SCC 767 : [2008] 11 SCR 93;Union of India v. V Sriharan (2016) 7 SCC 1 : [2015]14 SCR 613; Lehna v. State of Haryana (2002) 3 SCC76 : [2002] 1 SCR 377; Mahesh Dhanaji Shinde v.State of Maharashtra (2014) 4 SCC 292 : [2014] 3SCR 406; Gurvail Singh v. State of Punjab (2013) 2SCC 713 : [2013] 1 SCR 783; Mulla & Anr. v. State ofU.P. (2010) 3 SCC 508 : [2010] 2 SCR 633;Kamleshwar Paswan v. UT Chandigarh (2011) 11 SCC564 : [2011] 1 SCR 647; Sunil Gaikwad v. State ofMaharashtra (2014) 1 SCC 129 : [2013] 9 SCR 295;Shatrughan Chauhan v. Union of India (2014) 3 SCC1 : [2014] 1 SCR 609; Dilip Premnarayan Tiwari v. Stateof Maharashtra (2010) 1 SCC 775 : [2009] 16SCR 322; Malkiat Singh and Ors. v. State of Punjab(1991) 4 SCC 341 : [1991] 2 SCR 256; Muniappan v.State of T.N. (1981) 3 SCC 11 : [1981] 3 SCR 270;Birju v. State of M.P., (2014) 3 SCC 421 : [2014] 1SCR 1047; Bharat Singh vs. State (NCT of Delhi)Order dated 17.04.2014, DSR No. 1/2014; Anil v. Stateof Maharashtra (2014) 4 SCC 69 : [2014] 3 SCR 34;Md. Mannan @ Abdul Mannam v. State of Bihar (2019)16 SCC 584 : [2019] 8 SCR 266; Allaudin Mian v. Stateof Bihar (1989) 3 SCC 5 : [1989] 2 SCR 498;RameshbhaiChandubhai Rathod v. State of Gujarat(2009) 5 SCC 740; Rajesh Kumar v. State (NCT ofDelhi) (2011) 13 SCC 706; Mukesh v. State (NCT ofDelhi) (2017) 3 SCC 717; Chhannulal Verma v. Stateof Chhattisgarh (2019) 12 SCC 438 : [2018] 14SCR 355; Santa Singh v. State of Punjab (1967) 4 SCC190; Allaudin Mian v. State of Bihar (1989) 3 SCC 5 :[1989] 2 SCR 498; Ajay Pandit @ Jagdish v. State ofMaharashtra (2012) 8 SCC 43 : [2012] 10 SCR 70;Gurvail Singh & Anr v. State of Punjab (2013) 2 SCC713 : [2013] 1 SCR 783; Amit v. State of Uttar Pradesh(2012) 4 SCC 107 : [2012] 1 SCR 1009; Shyam Singh@ Bhima v. State of Maharashtra (2017) 11 SCC 265;Ramnaresh & Ors. v. State of Chhattisgarh (2012) 4SCC 257 : [2012] 3 SCR 630 and M.A Antony @

Antappan v. State of Kerala (2020) 17 SCC 751 –referred to.

R v Dohoney & Adams 1997 1997 (1) Crl App Rep369; District Attorney’s Office for the Third JudicialDistrict v. Osborne 557 U.S. 52 (2009) – referred to.

185[th] Report, on Review of the Indian Evidence Act, 2003– referred to.

464SUPREME COURT REPORTS

[2022] 9 S.C.R.

MANOJ & ORS. v. STATE OF MADHYA PRADESH

Para 159Para 160Para 160BPara 168Para 171Para 171CPara 171Para 171Para 173Para 173DPara 178Para 182Para 183Para 185EPara 185Para 186Para 186Para 186FPara 186Para 189Para 189Para 189GPara 189Para 193Para 194Para 195H

466SUPREME COURT REPORTS

[2022] 9 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 248-250 of 2015

From the Judgment and Order dated 29.09.2014 of the High Courtof Madhya Pradesh at Indore in Criminal Reference No.4/2013/DA/8and Criminal Appeal Nos.3 and 266 of 2014 respectively.

Ms. Anjana Prakash, Sr. Adv., Kaustubh Anshuraj, Shri Singh,Ms. Shivani Misra, Ms. Shreya Rastogi, Anirudh Sanganeria, Ms. SrideviPanikkar, Advs. for the Appellants.

Ms. Swarupama Chaturvedi, AAG, Sunny Choudhary, Ms. SaumyaKapoor, Siddhanth, Shikhar Kishore, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The present judgment will dispose of three appeals[1] preferredby three accused persons. They were convicted under Section 302 ofIndian Penal Code (IPC) (3 counts) imposed with death penalty by thejudgment and orders of the First Additional Sessions Judge, Indore[2].This was confirmed by Division Bench of the High Court of MadhyaGPradesh atIndore[3].

1 Criminal Appeal No. 248-250/2015

2 Dated 13.12.2013 passed in Sessions Case No. 536/2011

3 Dated 29.09.2014 passed in Criminal Appeal No. 3/2014, 266/2014 & CriminalReference No. 04/2013

A2. The appellants (Manoj, Rahul @ Govind and Neha Verma,hereafter referred by their names) were convicted for offence punishableunder Section 302 IPC (three counts) for committing the murder, duringthe course of robbery, of Megha Deshpande, Ashlesha Deshpande andSmt. Rohini Phadke on 19.06.2011. All three appellants were sentencedto capital punishment with fine of 1000/- on each count, and in defaultBof payment of fine, to undergo 6 months additional rigorous imprisonment(RI) on each count. Under Section 397 IPC, they were sentenced toundergo 10 years RI with fine of 1000/- and in default of payment offine, 6 months additional RI. Under Section 449 IPC, they weresentenced to undergo 10 years RI with fine of 1000/-, and in default ofCpayment of fine, 6 months additional RI.Manoj and Rahul@ Govind werealso convicted for offence punishable under Section 25(1-B) (B) of theArms Act and sentenced to undergo 1 yearRI with fine of 1000/- andin default of payment of fine, 6 months additional RI.Rahul wasalsoconvicted under Section 27 of the Arms Act and sentenced to undergo 3Dyears RI with fine of 3000/- and in default of payment of fine, 6months additional RI.

Facts

3. The facts are that PW-1 Niranjan Deshpande rented part ofHouse no. 24 Shrinagar Main from its landlord PW-5 Vishal Pandey,Efew days before the date of incident i.e., 19.06.2011. Niranjan’s wifeMegha, daughter Ashlesha and mother-in-law Smt. Rohini Phadke wereat those premises, residing there. In the evening of that dayanother tenantPW-2 Dipti Kapil who lived on the same floor told PW-5 Vishal Pandeythat Niranjan’s flat was bolted from the outside and reported seeingFpatches of blood on the door. On receiving this information, the landlordwent to enquire. When no one opened the door, he looked through theopen window and saw the dead bodies of the deceased persons lyingnear the bedroom door and blood was on the floor. He called his neighbourPW-9 Mahesh Parmar and Mukesh on the spot, before telephoning PW-1 Niranjan Deshpande to reach there immediately. PW-5 Vishal PandeyGalso lodged first information report (FIR) at Police Station MIG Colony,Indore[4] which was recorded by PW-31 Inspector Mohan Singh Yadav(investigating officer”IO”). The FIRalleging that some unknown personsmurdered the three deceased ladies with sharp weapons and fled the

scene, registered offences punishable under Section 302 IPC and 25Arms Act.

4. The police reached the premises and prepared spot map ofthe crime scene. Several articles found at the spot were seized. It waslater (on the next day) reported that Megha’s golden bangles andMangalsutra, Rohini Phadke’s two gold bangles, and Ashlesha’s mobilephone, camera and ATM cards were missing. Investigation started andon 22.06.2011 at around 06:00 AM, PW-28 Vijay Chauhan while onpatrolling duty, spotted Neha Verma outside an ATM near L.I.G, undersuspicious circumstances. On receiving this information, the IO (PW-31) along with PW-4 Banno Solanki and others, reached the spot. NehaVerma was searched. This yielded an ATM card, which belonged to thedeceased Ashlesha. Neha was taken for questioning; her disclosurestatements led to her subsequent arrest. Based on information sheprovided, the police recovered some robbed articles from her house.5. Upon disclosure statements of Neha the other accused i.e.,Rahul @ Govind and Manoj were arrested and from their possessionthe robbed jewellery, knife anda pistol was seized. Investigation revealedthat during the alleged incident Rahul @ Govind inadvertently shot hisown foot and recorded false FIR in this regard at the Annapurna PoliceStation by dehatinalisi dated 19.06.2011[5] against unknown persons.Accordingly, an FIR[6] was registered by PW-30 ASI R.S. Makwana foroffences punishable under Sections 294, 307 and 34 IPC. Manoj wasalso injured during the incident and secured treatment from PW-8 Dr.Achutmal Tejwani. The clothes and shoes worn by the accused wereseized; and parts of the broken and disposed mobile phone and camerawere also recovered and seized pursuant to their disclosure statements.The appellants underwent identification parade. Their fingerprints wereexamined, the seized articles were sent for chemical and DNA test andpermission for prosecution was taken.

6. After conclusion of investigation, the police filed final reportindicting the appellants for commission of offence under Sections 302,397 and 449 IPC and Section 25, 27 of Arms Act. The trial court framedcharges against the accused under Sections397/34 in alternative 302/34

5 Ex. P103-C

6 Ex. P107

Aand 449 IPC, and besides these charges Manoj was charged under section25(1-B) (B) of Arms Act, 1959 and Rahul @ Govind was charged underS. 25(1-B) (B) and 27 of Arms Act. All the appellants abjured their guiltand claimed trial. The prosecution examined 36 witnesses and producedcertain documents (Ex. P1-P129) in support of their case. After recordingthe evidence of prosecution, the appellants’ statements were recordedBunder Section 313 Criminal Procedure Code(CrPC). The appellantsexamined total of 6 defence witnesses and produced certain documents(Ex. D1-D50) in support of their case.

Trial Court’s findingsC

7. As the entire case was based on circumstantial evidence, uponappreciation of the material evidence adduced by the prosecution, thetrialcourt concluded that the accused persons were present at the scene ofoccurrence on 19.06.2011 at about 5:00-5:15 PM and that evidence ofexperts who lifted the fingerprints of the accused (from the house) alongDwith the testimonies of PW-1, PW-2, PW-5, PW-9 and PW-31 provedthat they had entered into the house. Upon recovery of the knife andfirearm which caused the death, it was established by way of chemical,DNA as well as ballistic examination that those articles were used andthat during the sequence of the incident, blood of the deceased personswas found on the clothes of the accused persons.The trial court furtherEconcluded that the footprints at the crime scene were similar to those ofthe shoes recovered from the accused persons, and the gun shot injurycaused by the bullet which hit the foot of Rahul @ Govind as well as thebullet which hit the body of the deceased, were fired from the sameweapon, which was recovered from his possession. It was held that thisFleft no doubt in establishing the guilt of Rahul and Manoj, and duringthewhole incident The evidence also proved Neha’s presence at that time.The trial court held that this established her involvement in the crimealong with the accused persons; every hypothesis of the innocence ofthe accused was ruled out.G8. After considering the evidence on record, the trial courtconvicted the appellants of committing the offences they were chargedwith. On the point of sentence, the trial court took the view that giventhe magnitude and diabolic manner in which the offences were committed,the case on hand fell under the category of rarest of the rare case andwarranted death penalty.H

High Court’s findings confirming the Trial Court’s order

9. The Division Bench of the High Court[7] confirmed the sentencesimposed on the appellants and the reference made by the trial court wasanswered in the affirmative. The High Court concluded that the forensicexperts as well as the neighbours and the investigating officer had seenthe blood-stained floor, walls, and bedsheets, and that the evidenceproduced on record with respect to them did not leave any major lacunain the case of the prosecution; further, the presence of the accused inthe house, their intention of committing such heinous crime, and themanner in which the accused persons had caused the death, had beenduly proved.

10. The High Court relied upon the statements of fingerprint expertPW-24 K.K. Dwivedi who visited the site and lifted the chancefingerprints which matched with the appellants’ fingerprints, as wellasjewellery recovered from their possession -which was identified byPW-1 and PW-3 as belonging to the deceased. The weapons (knife andcountry made pistol) used for the commission of the offence wererecovered from the accused and the same was proved. Also, the accusedpersons were duly identified in open court by the witnesses pursuant totheir depositions.

11. The High Court further held thatthe accused, during theirexamination under Section 313 CrPC failed to explain their conduct andeven gave incorrect and false answers. It therefore affirmed the trialcourt’s conclusions and findings.

12. Upon examination of whether this case would fall in thecategory of “rarest of rare case” to justify the imposition of capitalpunishment on the appellants, the High Court was of the view that as theincident shook the collective conscience of the community and the actsof murder committed by the appellants were so gruesome, mercilessand brutal, the aggravating circumstances far outweighed the mitigatingcircumstances and hence,this case fell under the category of rarest ofthe rare case which manifests society’s abhorrence of such crime.

Contentions on behalf of the Appellants

13. Ms. Anjana Prakash, learned senior counsel appearing probono for Rahul and Manoj, contended that the evidence of witnesses,

7 High Court of Madhya Pradesh, Bench at Indore vide order dt. 29.09.2014 in CriminalAppeal No. 3/2014,Criminal Reference No. 4/2013and Criminal Appeal No. 266/2014.

Ai.e., police witnesses and private witnesses in this case raise questionsas to whether Neha was arrested at the time and at the spot claimed bythe prosecution, whether her disclosure statements were genuine, whetherthe disclosures were made as claimed, and whether subsequent arrestsand recoveries were in the manner claimed by the prosecution.

B14. It was urged that PW-4 lady constable Banno Solanki deposedto having gone to the ATM machine, searched Neha, leading to recoveryof Ashlesha’s ATM card. However, she contradicted the IO and otherwitnesses about the place of her interrogation. PW-4 deposed thatNehawas interrogated at the Police Station where she said that someornaments and ATM cards were in her house.This was confirmed byPW-C6 Triyambak @ Prafulla and PW-36 Mulayam Singh Yadav. However,the prosecution did not explain why no arrest memo/information memowas prepared at the Police Station. It is argued that this is pertinent asthere is serious dispute about the arrests and recoveries itself, as alsothe manner claimed by the prosecution. Also, PW-4 the female constableDescorting the female accused, did notcorroborate the prosecution thatany recoveries were made from Neha’s house after her interrogation.She was silent about whether she was part of the police team whichwent to the house of Neha in her examination-in-chief. In crossexamination she deposed to sitting in the same vehicle as Neha whilegoing to her house. The presence of PW-4 is only confirmed by witnessesEof the search team (i.e., PW-3 Dr Deepak Hari Ranadey and PW-31 IOMohan Singh). PW-4 further did not support the prosecution that Nehahad disclosed the names of Rahul and Manoj or having accompaniedNeha (which would be expected, the accused being woman) to thehouse of the two accused and the resulting subsequent recoveries. She

Fdeposed that the police party returned to the police station from Neha’shouse inthe private vehicle. This suggests that the arrest memo (Ex. P9)and Information Memo (Ex. P10) made at that time and place is falseand as result, the subsequent story of Neha leading the police party tothe houses of Rahul and Manoj are also false.

G15. It was further stated that PW-31 deposed that PW-28 VijayChauhan, informed PW-19 Y.R. Gaikwad, about spotting girl standingsuspiciously near an ATM for which PW-19 made Station Diary entryand informed him via wireless. PW-31 therefore went to the police station,constituting team – comprising himself, PW-4, PW-19, PW-28 andPW-36 – which left for the ATM spot and thereafter to Neha’s houseH

(and those of Rahul and Manoj). It is submitted that neither was theStation Diary produced, nor did PW-19 corroborate the deposition ofPW-31 at all. Likewise, there was variance between the statement ofPW-28 and PW-31, on whether he was in the raiding party that went toNeha’s house.

16. Counsel further argued that PW-31 deposed about variouspersons accompanying him, when he learnt about Neha loiteringsuspiciously. However, he omitted to mention PW-19, who receivedinformation and told him about Neha’s movement, at PW-28’s behest.This suggests that Neha was in fact, interrogated at the Police Station.So, there was no reason for not preparing an arrest memo or recordingdisclosure statement at that point in time, in the police station itself, eventhough the ATM card had been recovered. PW-31 did not offer anyexplanationas to why the disclosure was made on the way in the policevehicle. Counsel also referred to PW-4’s deposition, which was silent onthis aspect. Furthermore, counsel highlighted that though family members,particularly Neha’s father were available, they were not intimated abouther arrest, nor were their signatures taken on the arrest memo. It wasurged that all these in fact corroborate the defence submission that Neha’sarrest did not take place as contended by the prosecution.17. Moving on to the arrest of Rahul and Manoj, somediscrepancies in the form of injuries found on their person and the mannertheir occurrence was recorded before their disclosure statements (Ex.P12-P13 in the case of Rahul and Ex. P15-P16 in the case of Manoj),were pointed out.How these injuries occurred in fact was recordedbefore the disclosure statement. It was submitted that after Neha’s arrest,recoveries were made from Rahul’s house (Ex. P14) at 09:10 AM. Here,Ex. P12 i.e., arrest memo dated 22.06.2011 of Rahul @ Govind made nomention of any injury on Rahul’s foot despite mentioning an old firearmwound on the left elbow in column 9 of the arrest memo, which is wherethe police noted the injuries. It was urged that this was an irreconcilablecircumstance against the prosecution’s case that Rahul had bullet injuryon his left leg.

18. It was submitted that Manoj’s arrest then took place at 10:05AM from his house (Ex. P15). His disclosure statement was recordedat 10:15 AM (Ex. P16) and seizures were made at 10:35 AM (Ex. P17).The arrest memo of Manoj (Ex. P15), however, does not record theinjury on the elbow even while it notes signs of an injury on the nose in

Acolumn 9 of the arrest memo which is where the police is supposed torecord injuries present on the body of the accused at the time of arrest.The prosecution case is that on 22.06.2011 from 6:00 AM till 4:40 PMvarious seizures were made and documents were prepared. However,there is evidence to show that press conference was held in the officeof DW-3 Sanjay Rana, IG Indore between 12:30 PM to post 1:00 PMBand even before the press conference, PW-31 IO had informed him thatthe investigation was done and Neha was arrested, and that he hadconducted the seizure procedure from the accused. This falsifies thestory of the recovery of shoe at the instance of Rahul Ex. P21 [relianceis placed on DW-3 and DW-5].C

19. Ms. Prakash contended that PW-31 IO deposed tointerrogating Rahul on 23.06.2011 before two witnesses -but did notname them. Rahul reportedly disclosed that he had kept his clothes andknife in bag in his motorcycle and Manoj had broken the stolen mobileand camera and thrown them near Maruti Showroom. He then preparedDthe information memo (Ex. P28) at 07:50 AM. He interrogated Manoj inthe presence of two witnesses (who he did not name) who allegedlyconfessed that he had concealed the clothes and shoes worn by him inhis father’s almirah and had thrown broken mobile near the Marutishowroom at Rau. He then prepared information memo (Ex. P31),recorded at 08:05 AM. PW-31 also interrogated Neha in the presenceEof two witnesses (who were again, not named) who revealed that shehad kept her clothes and sandalsworn by her in the dicky of her Scooty.He then prepared information memo (Ex. P34) at 08:15 AM. It wassubmitted that since the accused had made their disclosures on the dateof their arrest, it appears strange and unnatural that truncated recoveryFstatements would be given at different stages of investigation.Counselurged that there was no explanation as to why PW-31 IO does not revealeither the time of recording of statements or the names of the witnesses.

20. Commenting on the recoveries made on 23.06.2011, it wassubmitted that no explanation was furnished as towhy truncatedrecoveries were made on different dates, aswas claimed by theGprosecution. Further, the witness to these recoveries PW-7 SandeepNarulkar, appears to be stock witness who stated that he reached thepolice station at 8:45 AM on 23.06.2011, i.e., afterthe disclosurestatements (Ex. P28, P31 and P34) were recorded. In the chiefexamination, this witness deposed that Rahul disclosed before him thatHhe could get the clothes, knife, lens of camera recovered. Manoj disclosedkeeping his clothes in his father’s house and Neha about having kept herclothes in her vehicle parked behind hospital. Then police preparedmemos Ex. P28, P31 and P34 respectively and recovered articles ofwhich memos were prepared as Ex.P29,P31 &P34 respectively.It ispointed out that PW-7 does not say anything about lady police officerin the team which would have been required on account of involvementof female accusedNeha.It was urged that non-examination of the otherwitness (Prakash lchke) assumes great significance and without anyexplanation for his non-examination it cannot be said that the recoveriesare reliable.

21. Counsel cast serious doubts as to the recovery by police on22.06.2011 and 23.06.2011. She particularly pointed to the fact that aphotograph of Rahul wearing black beaded bracelet was found fromhis house and seized as Ex. P14. This was not made pursuant to anydisclosure and apparently was seized during the process of seizing otheritems. During the cross-examination of PW-31 IO, suggestion wasmade that this picture was clicked when the bracelet was forced to beworn by the accused. The IO denied the suggestion. Likewise, aphotograph of Manoj, wearing sunglasses was seized from his houseand exhibited as Ex. P17. This was in the course of his disclosurestatement leading to recovery of other articles. However, in Rahul’scase, there was no disclosure statement. Neither of the seizure memosmentioned from where in the premises, these articles were found. Further,the recoveries were not spoken about in the depositions of the recoverywitnesses.

22. It was next argued that neither PW-3 nor PW-6 said anythingregarding the sealing of the seized items Ex. P11, P14 and P17) in theirpresence on 22.06.2011 and 23.06.2011.Similarly, the witness (forrecoveries made on 23.06.2011)PW-7, did not mention who placed sealson the items Ex. P29, P30, P32, P33 and P35. PW-6 could not recollectthe sealing of the articles on 22.06.2011. Likewise in Ex. P35 disclosureby Neha and recovery of items on 23.06.2011 do not mention the sealingof the items. Counsel also compared the depositions of the panchwitnesses with the evidence of PW-12 Tehsildar and PW-36 MulayamSingh Yadav (head constable, MIG). It was submitted that thesewitnesses nowhere mentioned the particulars of sealing, what kind ofseals were placedor the signatures of persons, who had witnessed therecovery and sealing of the articles. It is therefore argued that therecoveries on 22.06.2011 are unreliable. Learned counsel submitted that

Ain all likelihood, the accused were in police custody for longer periodthan what was projected, which raises doubts over the veracity andvoluntariness of the disclosure statements by them. She also submittedthat recoveries of next day i.e., 23.06.2011 are similarly unreliable asthey were not recorded in the presence of witnesses PW-7 and PrakashIchke. PW-7 arrived at the police station that day at 8:45 AM, theBdisclosure statements however were recorded earlier between 7:50 and8:15 AM – evidenced by Ex. P28, P31 and P34. Signatures of thewitnesses were taken on those documents. It was submitted that theoral evidence completely undermines and falsifies preparation ofdocuments at the date and time mentioned. Therefore, recoveries areCdubious inasmuch as they purport to have been made pursuant todisclosure statements on the same day, which were recorded before thewitnesses even reached the police station. Another suspiciouscircumstance according to counsel was that recoveries were made inthe afternoon, starting from 02:45 PM after gap of 6 hours. The timingof Ex. P29, P30, P32, P33 and P35, are shown in this regard. It is arguedDthat when the disclosure statements were recorded latest at 8:15 AM,the police did not offer any explanation why the recoveries took place inthe afternoon only after lapse of six hours.23. It was further submitted that recoveries are also suspect becausethe details were published in newspapers, both on 22.06.2011 andE23.06.2011. Learned counsel relied on Ex. D4, published on 22.6.2011which mentions the recovery of pistol and knife from the accused.Theserecoveries were made that day at 9:30 AM and 10:35AM. Importantly,thelearned counsel argued that the chain of custody of the shoe allegedlybelonging to Rahul which was seized from an open place within jurisdictionFof the Annapurna police station on 22.6.2011 as propounded by theprosecution,issuspectas it was soon photographed in newspaperpublished on 23.6.2011, while in the hands of the police officer. Relianceis placed on Ex. D6 in this regard.

24. It was next pointed out that the accused were produced beforea magistrate on 23.6.2011. The record reveals that the arrests wereGmade in the morning of 22.06.2011, and several articles were seizedpursuant to the disclosure statements of the accused and consequently,recoveries effected. However, the magistrate was not shown thesearticles nor was any memo produced before the magistrate at the timeof the production of the accused on 23.6.2011. This procedural irregularityHas highlighted by the senior counsel is contrary to Section 102(3) CrPC

which requires every police officer to forthwith report seizure of anyarticle to magistrate having jurisdiction.Counsel relies on UmeshTukaram Padwal & Anr. v. State of Maharashtra[8], to say that non-compliance is fatal to the prosecution story.

25. Ms. Prakash also contended that PW-10 Dilip Sen is chancewitness whose testimony is unreliable because it contains contradictionsand material improvements. It contains material contradiction regardinghis reporting to the police about seeing all the three accused. In hisexamination-in-chief, he stated that he read about the incident in thenewspaper and therefore, went and informed the police about the incident.In his cross examination, however, he said that he did not read thenewspaper and went to the police station without reading the newspaper.He also mentions going to the police station for another reason (to get agumasta license) and upon overhearing discussions going on there aboutthis case, he volunteered information. Further his testimony is unbelievableas, given the description of the scene of crime, the clothes of the accusedshould have also been smeared with blood. The recovery memos of theclothes of the accused (Ex. P29, P32, and P35) shows that the clothesworn by the accused on the day of the incident were light in colour onwhich blood would have been easily visible. Moreover, PW-10 explainedhis presence near the place of occurrence since he wanted to check ifHouse No. 23 was available for rental purposes. However, theprosecution has not sufficiently established his presence near the placeof occurrence as the owner of House No. 23 was not examined and noother evidence was led to confirm the presence of PW-10 at the placeof occurrence. PW-10 further improved from his statement under Section161 CrPC (Ex. D7) with respect to Neha’s presence at the place.Likewise, learned counsel submitted that PW-8 Achyutmal Tejwani(whose deposition was relied on by the prosecution, to say that he treatedManoj), is an unreliable witness. His credentials as medical practitioner,was doubted: counsel relied on the witnesses’ cross-examination andsubmitted that this witness had migrated to India from Pakistan, and inall probability was beholden to the police.

26. Learned counsel submitted that the delay of 25 days inconducting the test identification parade (TIP) is unexplained. The delayassumes significance since unveiled photographs of the accused were

DEF

Apublished across newspapers starting from 23.06.2011. In this regard,reliance is placed on Ex. D6,D45 and D48 which are newspaper articlescontaining photographs. Furthermore, it was submitted that the procedureof the TIP was questionable as Rahul and Manoj were made to standtogether in the TIP line-up. The identification memo does not record theappearances of the other persons. Ms. Prakash submitted that RahulBand Manoj do not look similar - she relied on the arrest memos Ex. P12and P15 to support her argument. PW-10 in his cross examination statedthat some persons were tall, others were short; some were fair andothers, dark. Therefore, the combined TIP procedure was faulty andcould not have been relied on. In this regard, counsel relied on Lal SinghCand others v. State of U.P[9], Muthuswami v. State of Madras[10 ]andMohammed Abdul Hafeez v. State of AP[11 ]to say that in the absence ofindividual distinguishing features, TIP of the accused conducted aftera relatively long time may not be relied upon by the courts.

27. Learned senior counsel submitted that there was serious doubtDabout the identity of Rahul, who was referred to as “Govind” in alldocuments until the preparation of his arrest memo Ex. P12 on 22.06.2011.There was no reason why an alias for Rahul was associated with him inthe arrest memo. This raises doubt about the identity of the individual.All documents relating to the medical treatment for the bullet injury aswell as the case proceeding (Crime No. 377/2011 registered by PW-29Ecrucially on the date of occurrence) refer to him as Govind. These wereEx.P103 – dehatinalisi at 10:30 PM on 19.06.2011; Ex. P97 - letter ofpolice to the District Hospital & report of District Hospital Indore afterexamination of wounds and referring him to M.Y Hospital; Ex.P104 -Crime details recorded at 11 PM on 19.06.2011; Ex. P105 - FIR of the

Fshooting incident at 12:15 AM on 20.06.2011; Ex.P101 -case closurereport on 29.06.2011; Ex.P113 at MY hospital signed by PW-32 Dr.Nilesh Guru on 20.06.2011.

28. Learned counsel submitted that the non-identification by thetreating doctors (PW-26 and PW-32) of Rahul, or even of PW-30 RSGMakwana (of PS Annapurna) in TIP or in court, on the one hand, and hisidentification by PW29 Gourishankar Chadar (of PS Annapurna) in courtas Govind @ Rahul, assumes significance. Rahul was allegedly admitted

9 2003 (12) SCC 55410 AIR 1954 SC 4H11 (1983) 1 SCC 143

in MY Hospital and there was ample opportunity for the treating doctors,nurses, and other hospital staff to identify him. Their omission to do so,raises serious doubts.

29. Ms. Prakash argued that material was suppressed regardingadmission in hospital. In this regard, it is pointed out that Ex. P113 onlymentions the date of admission as 20.06.2011 and the name of the patientis mentioned as Govind. There is no information on record regarding thetreatment given to him and the time of his discharge. This is more crucialas no one from the hospital has deposed in order to prove the identity ofthe person being treated. Likewise, chain of custody of the bullet extractedfrom Rahul was not proved. In this regard it was contended that PW-32Dr. Nilesh Guru extracted the bullet and deposited it in the medico-legalcase section at MY Hospital on 20.06.2011. He did not depose to sealingthe bullet at all. sealed bullet was collected by PW-30 from MY Hospitalfrom an unknown doctor on 23.06.2011. The bullet was not sealed infront of PW-30. Therefore, there is no evidence on record to prove whosealed the bulletand when. It was urged that the magistrate’s remandorder dated 23.06.2011 omitsmentioning of any injuries,especially onAppellant 2 Rahul@ Govind which would have been visible since hehadbeen hospitalised. Furthermore, no MLCs of the accused persons wereproduced during the trial. It was also contended that the prosecutionversion regarding reporting of false case and seeking medical treatmentand informing PS Annapurna to alert them of the bullet by Rahul isunbelievable. Ex. P97 shows that it was prepared at PS Annapurna.From the document it appears that Govind was sent to the District Hospitalwith forwarding letter that curiously has note seeking opinion onwhether the injury is self-inflicted. This directly contradicts the story ofPW-29 that Rahul @ Govind had shouted and alerted the police that hewas going to the District Hospital.

30. In terms of Ex. P104 Rahul had signed the spot map preparedon 19.06.2011 at 11:00 PM. However, it is also the case of the prosecutionthat Rahul was going to get his injured foot treated and was admitted inhospital during that time.It appears that Constable Dinesh took Rahul tothe District Hospital and subsequently to MY Hospital. That constablehas not been examined and no reasons for non-examination were given.Learned counsel submitted that there is no material about how Rahulwent from District Hospital to the MY Hospital with gunshot injury, orwho took him from the District Hospital to MY Hospital and whoconducted his x-ray.

A31. It was next argued that as far as seizure memo of the rightshoe is concerned, the memo (Ex. P75) was drawn at PS Annapurnaatthe behest of Abhay Tiwari, who too was not examined by the prosecution.This makes the contents of the document inadmissible. PW-20 HarbhajanSingh did not remember the logo on the shoe. He also did not depose asto which foot (left or right foot) did the shoe fit, or its size. He did not sayBwhether it was sports or leather shoe and also does not describe laces.PW-20 deposed that it was seized in his presence, however, he does notmention whether the same was sealed in front of him. PW-29 merelydescribed that Abhay Tiwari found the shoeand it was contended thatthis was hearsay evidence. Importantly, there was no inquiry by theCprosecution to prove that the seized shoe was even the same size asRahul @ Govind’s. His foot size could have been measuredunderSections 2(a) and 4 of the Identification of Prisoners Act, 1920which wasnot done.32. It was next urged that there were serious gaps in the TIP ofDthe jewellery held on 09.07.2011 by PW-12 Tehsildar. In this regard, itwas pointed that PW-3 Deepak Ranade deposedthose two bangles wereremoved from Rohini’s hand and one kudi (earring) was removed fromher body and handed over to him. During jewellery identificationproceedings, PW-1 identified Megha’s four (4) bangles and Rohini’s two(2) bangles. It is unclear if bangles identified by PW-1 included thoseEhanded over to PW-3. Further, if the bangles of deceased Rohini givento PW-3 were not the same as those identified by PW-1, the tworecovered bangles from the accused were not matched with those givento PW-3. It was also unclear if the jewellery was mixed with other itemshaving similar designs, as required by law. Similar pieces of brokenFmangalsutra should have been kept during the identification proceedingsas well. Further, the identification memo (Ex. P1) did not indicate howmany similar pieces of jewellery were mixed along with the jewelleryidentified.There is discrepancy in the evidence of PW-1 and PW-3 as towhat was said to havebeen stolen when questioned on 21.06.2011.GAccording to PW-3, on 21.06.2011when he went along with PW-1 tothe house of the deceased, PW-1 only informed about the missing camera.

33. Challenging reliance on the DNA analysis report, counselsubmitted that there was inordinate delay in sending items to the forensicscience laboratory (FSL). The items seized on 23.06.2011 were sent forexamination to the FSL on 13.07.2011 (after 20 days) as seen by Ex.H

P115. This delay was not explained by the prosecution. Therefore, itwas urged that records of the police malkhana and conditions ofsafekeeping of items were important in this case. Also, statistical analysiswas not conducted which is an integral part of the scientific process.The lack of cross examination of the DNA expert PW-35Dr. PankajShrivastava on this was argued to be immaterial since this goes toadmissibility of the DNA report as scientific evidence and this courtshould consider this serious gap in the scientific process. Counselsubmitted that blood reference samples of the deceased were not collectedand tested. The blood collected on cotton swabs found next to the deadbodies at the crime scene were used as reference samples, which isunreliable. Lastly, counsel urged that no laboratory records were submitted– PW-35 mentioned that in the observation sheet details of the samplesreceived and the testing were noted. This sheet was not submitted withthe laboratory report. Also, electropherograms were not submitted withthe laboratory reports.

34. Turning next to the ballistic reports and the prosecution’s claimthat the bullet extracted from Rahul’s foot, and that recovered fromMegha’s body were fired from the same weapon, it was argued, thatthese circumstances were not proved, because of the unreliability withregard to the manner of Rahul’s arrest, doubts about his identity, mannerof seizure of the bullet from his foot, its sealing, custody, and productionin court. Counsel submitted that the articles were received by the ballisticexpert only on 14.07.2011; the ballistics report Ex. P120 is dated30.07.2011.

35. Doubts were expressed about seals on the items seized fromthe crime scene, which included the fired cartridges. According to thecounsel their consequent matching with the test fire cartridge wasunreliable. It was urged that the presence of copper during the chemicalanalysis of the shoe is unreliable since the shoe was seized at AnnapurnaPS and the witness Abhay Tiwari was not examined. Further, the livecartridge’s primer cap (seized from the place of occurrence) had fallenduring examination by PW-16 Bheem Bahadur who was from the ArmsBranch and had sealed the cartridge. He, however, did not say that hehad reloaded it. During the ballistics examination however, it wasfound that Article A-6 contained live 7.65mm caliber pistol cartridgewhich was marked LR1 (in Ex. P120). The description of LR1 statesthat it is reloaded live cartridge. The seals of the arms branch on theAB

Alive bullet were intact when they were sent to the FSL on 13.07.2011(Ex. P115). These facts raised doubts about the chain of custody ofArticle A-6 (the live cartridge) given the discrepancies in its condition.Further, it is unclear as to what was used for the test firing by the FSL:if the live cartridge was used, it would not be possible since the primercap had fallen off, making it unusable. The Report (Ex. P120) did notBmention the use of another test ammunition for the firing test, whosedescription should have been provided as part of the report to ensurethat the same ammunition is being used. Counsel submitted that the firedcartridges found at the left side and the legs of the deceased were notphotographed- as evident from scene of crime report (Ex. P77) andCcrime scene photos (Ex.P56).PW-9 did not see the bullet in his hand andsaid that it was small in size. It is not explained how he recalls the caliber(KF 7.65) written on the bullet and fired cartridge.

36. Learned senior counsel submitted that the circumstancesrelating to lifting of fingerprints, their being forwarded for expertDexamination, and the report, were not proved beyond reasonable doubt.It is urged that with regards to chance prints found at the place ofoccurrence, PW-5 Vishal Pandey did not mention signing of the fingerprintslips. Elimination prints were not taken from anyone present at the crimescene. To prove that fingerprints were of the accused, the identity of thespecimen prints were not proved since neither the signature of theEaccused nor their photographs were affixed on Ex. P41, P42, or P43,contrary to what was stated by PW-13 Vijay Singh Chauhan (constable)who mentioned that he took signatures of the accused persons. Thespecimen prints were not taken before the magistrate on 23.06.2011,and rather on the next day (24.06.2011) at PS MIG. Sending of fingerprintsFfor examination: No witness (PW-13, PW-24, or PW-31) has deposedanything suggesting that prints were sent to the fingerprint branch in asealed condition. The rule of prudence of taking prints before themagistrate under Section 5 of Identification of Prisoners Act, 1920 wasbreached. Further, specimen fingerprints of the accused were sent tothe fingerprint branch after an unexplained delay of 3 days, i.e., 27.06.2011Gdespite both departments being in Indore. The fingerprint expert’s report(Ex. P84) is not credible because elimination of the deceased’s printswas not explained by PW-24 KK Dwivedi (fingerprint expert) or in hisreport Ex. P84. Only the final conclusion of elimination has been writtenabout. There is no scientific evidence that fingerprints are unique for allHindividuals and therefore, heavy reliance cannot be placed on it. It is only

corroborative in nature.Further,the counsel highlighted that the fingerprintswere not lifted from the knives, pistol and ornaments seized from theaccused. Counsel relied on Mohd. Aman & Anr. v. State of Rajasthan[12]and Chandran @ Surendran & Anr. v. State of Kerala[13], for arguingthat fingerprint proof cannot ipso facto lead to conviction.

37. Learned senior counsel then argued that the shoeprint report(Ex. P125) mentioned that the chance shoeprints were incomplete andunclear, despite which the expert proceeded with the examination andcame to finding of the prints being identical to F6 (right), G4 (right),and H3 (which does not specify which side, as per Ex. 125). Rahul’sfoot impression was not taken as per Section 4 read with Section 2(a) ofIdentification of Prisoners Act along with Rule 822(4) of MP PoliceRegulations Rules. It was urged that this was important in proving thatRahul wore shoe size 44. PW-5 mentioned that there was lot of bloodon the floor. Elimination prints of shoes were not collected from PW-5or anyone else present at the scene of occurrence. At this point it isworth noting that among others, five persons had entered the place ofoccurrence to act as witnesses to the inquest proceedings. The scene ofcrime report (Ex. P77) mentioned that the shoeprints were bloodied andpartial in nature. All these cast doubts about authenticity and reliabilityof the footprint expert’s report.

38. Mr. Shri Singh, learned counsel arguing pro bono on behalf ofthe appellant Neha, supplemented the contentions of Ms. Anjana Prakash.He questioned the prosecution version about Neha’s arrest. He submittedthat officially Neha’s arrest memo(Ex. P9) was prepared at DevendraNagar. When Neha was arrested, personal Seizure Memo (Ex. P10)anda Disclosure Memo (Ex. P11)was prepared. No explanation as to whyNeha’s search outside the ATM (Ex. P22) did not yield the phone seizedthrough Ex.P9, was given. PW-31 IO admittedthat this was not recordedin Neha’s arrest memo. Pertinently, the prosecution neither conducted atechnical investigation of the seized phone nor providedany explanationas to why investigation was not conducted in this regard.Further, DW-1SI Deepika Shinde admitted to conducting an analysis of the CDRs[14].The CDRs were not produced before the trial court.

12 (1997) 10 SCC 44

13 (1991) Supp (1) SCC 39

14 Call detail records, which list out the incoming and outgoing calls received and madefrom the instrument.

39. It was urged that these omissions impel the court to draw anadverse inference, under Section 114 (g) of the Evidence Act1872 againstthe police, casting grave doubt over Neha’s apprehension, her arrest,and subsequent recoveries. Reliance is placedin this regard on NoorAga v. State of Punjab[15 ]and Chunthuram v. State of Chhattisgarh[16].

B40. Learned counsel further argued that PW-4 Banno Solanki(lady constable) was cross-examined on 30.09.2011 i.e., just three monthsafter the incident. In cross-examination, the suggestion given was thatNeha was brought to the police station on the evening of 21.06.2011 byDW-1 SI Deepika Shinde. PW-4 was silent regarding her role in searchingNeha’s residence on 22.06.2011, though she claimed she was presentCduring Neha’s apprehension earlier. PW-28, during cross-examinationabout DW-1’s role, deposed that he and DW-1 received an out-of-turnpromotion. PW-6, too during cross-examination, admitted that DW-1 wasa part of the raiding team. These facts were effaced from the record.This was consistently the line of defence during the trial. Both courtsDbelow disregarded this aspect of Neha’s defence –though theinvolvement of DW-1, in the investigation of this case was provedconclusively. Further, despite several opportunities, the prosecution failedto explain the acts of DW-1 during the investigation, or why her role wasspecifically erased. Reliance is placed in this regard on Reena Hazarikav. State of Assam[17]. It was urged that this warrants adverse inferenceEagainst the prosecution, creating doubt over its reliability.41. It was argued that the testimony of DW-1 Deepika Shinde infact shows that technical evidence was analysed on the date of theincident itself. This does not square with the complete absence oftelephonic evidence in the testimonies of the investigating team includingFPW-4, PW-28, PW-31. Telephonic evidence about whether the accusedspoke to each other, or knew each other, or whether the deceased spoketo any of the accused, or the triangulation of location was not collectedduring the investigation and has been kept out of the trial. It was urgedthat in its place, this court now had to rely upon the ipse dixit of theGinvestigation team, knowing that electronic evidence was not onlyavailable, but was surreptitiously used to Neha’s detriment. It was pointedout that PW-31 IO made no reference to the presence of officials of the

15 (2008) 16 SCC 41716 (2020) 10 SCC 733H17 (2019) 13 SCC 289

Crime Branchon 19.06.2011, 20.06.2011, or 21.06.2011. However, PW-28, Vijay Singh Chauhan made reference to his Crime Branch posting,and informing PW-19 YR Gaikwad, what he (i.e., PW-28) saw on22.06.2011. However, PW-19 in histestimony was silent on receivingany information from PW-28on 22.06.2011. DW-1’s capacity forconducting investigation was questioned on the ground that the CrPCdoes notpermit parallel/multiple investigations in the same case.

42. It was submitted that despite recovery of the “Oriflame”document from Neha, the prosecution did not rely on the documentas anexhibit. The prosecution did not examine any official from the companyto provide any context whatsoever as to the forms, catalogue or, perfumerecovered from Neha’s residence on 22.06.2011 (Ex.P11). There is noevidence to suggest that theform seized from Neha was filled in by thedeceased Megha; nor was the latter’s signature identified orproved.Counsel stressed that the independent witnesses who deposedto such form do not indicate that there were any signatures on it. PW-3 merely stated that paper/document (of “Oriflame”) was recoveredfrom Neha’s residence. He did not indicate whether the form was filled.PW-6 stated that certain articlesincluding the form were seized in hispresence but did not indicate their nature/details. While PW-3 identifiedtheform incourt, no question for the purpose of identifying the handwritingonsuch form was put to him. The signatures of the independent witnesses,as well as the police personnel at the time of such seizure werenot foundon the pullanda containing the form. The only witness providing anydetails with reference to the “Oriflame” form is PW-31 IO. It was urgedthat these “details” too were meresurmises of PW-31 untested duringthe investigation or trial. It was also pointed out that all questions put toNeha, relating to the recovery of the Oriflame form, were denied. WhilePW-1, in his examination-in-chief states that his wife was consultantat Oriflame, the form seized from Neha’s house was not shown tohim. Evidence in this regard may have been forthcoming from him. Infact, neither PW-1, nor any Oriflame employee admitted the handwritingof Megha. The prosecution did not conduct any forensic examinationof the form to establish the alleged handwriting/signature of Megha.Further, PW-l was also involved in TIP for the seizures of articlesseized, where certain jewellery, allegedly belonging to the deceased,waspurportedly identified by him. Inexplicably the “Oriflame” formwas not put to him by the prosecution in these proceedings. Therefore,it is evident that the “Oriflame” document does not connect the deceased,

AMegha, or her relation of dealing with Nehaas there was no investigationon this document. Therefore, barring the ipse dixit of PW-31 IO, thereis nothing suggesting that the “Oriflame” form was filled for Megha, orfilled or signed by her.

43. Mr. Shri Singh next urged that DW-1 Deepika ShindehadBadmitted to going to the spot on 19.06.2011, based on request made bythe control room. She also sought information from the officials at PSMIG, and thereafter spoke to the deceased persons’ neighbours. However,DW-1 could not provide any details in this regard during her examination-in-chief. Though DW-1 stated that she examined the CDRs of the accusedpersons, she provided no specific details of such analysis in her testimony.CDW-1 also admitted interrogating Neha. DW-1 further confirmed thatshe was informed by source that Neha would leave her house wearinga pair of jeans and maroon top. This information was received by DW-1 prior to Neha’s arrest, and therefore presumably DW-1, by her ownadmission, was involved in the investigation even beyond 22.06.2011.DFurther, DW-1 stated that she shared the source information withhercolleagues and subordinates. PW-28, while giving patently false testimonyin court also stated that when he saw Neha at LIG Tiraha, she wasdressed in “black jeans and maroon top”. PW-28’s deposition showshow he allegedly spotted Neha, which is belied by DW-1’s testimony.Despite sucha deposition, the prosecution elected not to cross-examineEDW-1.

44. It was argued that DW-1 Deepika Shinde’s presence duringthe investigation was confirmed by PW-7’s testimony. He is alleged tobe an independent witness to the recoveries from Neha’s residence on22.06.2011. At paragraph 14 of his testimony and during cross-Fexamination, he admitted that DW-1 was part of the raiding team- afact that has been kept out of the record.Counsel submitted that all thesefacts can be simply answered by Neha’s illegal custody before 22.06.2011.It was strongly urged that Neha’s personal search and the recoveriesfrom her residence were tainted and the records and seizures pertainingGto these purported proceedings could not be relied upon. The staccatomanner in which the purported record of the prosecution reflected eventstaking place on 22.06.2011 indicated that the police fabricated the record,resulting in Neha’s false implication.

45. Mr. Singh next argued that the prosecution did not prove anyHprior relationship between the accused. Neither was any material produced

to suggest that the three accused knew each other or had any prior plan,agreement or common intention to commit robbery at the place ofincident.The prosecution admittedly had access to the CDRs of theaccused persons and could have demonstrated the fact whether therewas relationship, which there was none. Either way the CDR evidencewas crucial to the prosecution and the lack of explanation as to why itwas not part of the investigation casts doubts on the investigation andits fairness.It was stated that while the official investigation claimed thatno CDRs were accessed (PW-31’s statement is relied on for this), theunofficial investigation (or, that material kept away from court) conductedby DW-1 admitted having access to and analysing the CDRs. This aspectlends credence to the defence that the present investigation was improperand that it would be unsafe to rely upon it to render findings of theaccused’s guilt. Reliance is placed on Suresh Sakharam Nangare v.State of Maharashtra[18] in this regard.

46. It was further argued that while convicting Neha under Section302 read with 34 IPC, the courts belowfailed to appreciate that there isno material to suggest that shehad any common intention with the co-accused persons, much less common intention to commit murder.Further, the nature of Neha’s conviction highlights that no weapon wasrecovered from her; she did not suffer any injury and none of her personalitems of belonging were recovered from the crime scene.

47. Supplementing Ms. Prakash’s arguments regarding PW-10,it was argued that the testimony of this chance witness was unreliabledue to gaps and contradictions. PW-10’s cross-examination revealedthat his examination-in-chief was an improvement over his statementunder Section 161 CrPC –the witness had embellished his version of theincident, such as the fact of the injury of the accused persons, and morepertinently,Neha’s statement having arrived on her Scooty and tellingone of the boys to take the other injured boy to the hospital. PW-10 alsocontradicted himself regarding what brought him to the police stationand regarding the TIP. In his examination-in-chief, he stated that womanconstable was present at the TIP, whereas during cross-examination,the witness stated that no woman constable was present at suchproceedings. Further, while PW-12 the tehsildar, PW-18 Pratap KumarAgasia, and PW-11 Raju Sen, stated that both PW-10 and PW-11appeared for the TIP together, PW-10 did not mention the presence of

APW-11 on such day. It was furthermore, urged that PW-10’s credibilitywas questionable as he appeared to be stock witness – he deposedduring his cross-examination that he had previously appeared as witnessfor theprosecution in another case registered at PS Palasia.

48. Mr. Singh urged that the prosecution did not give any explanationBabout the delay inconducting the TIP proceedings, given that PW-10 hadinformed about him sighting three persons on 20.06.2011, barely dayafter the incident; whereas the TIP was conducted much later on14.07.2011, by which date the photographs of the accused had beenpublished in newspapers. Reliance was placed on the judgments of thiscourt which observed thata delay in TIP must be explained to placeCreliance on the testimonyof witness. Reference is made to this court’sjudgments in State of Andhra Pradesh v. Dr. M.V. Ramana Reddy &Ors.[19] And Rajesh Govind Jagesha v. State of Maharashtra[20]. Itwas submitted that apart from being delayed, and procedurallyquestionable, the TIP conducted on 14.07.2011 did not yield anyDinformation that was notalready part of the public domain. Counsel reliedon Matru @ Girish Chandra v. State of Uttar Pradesh[21 ]where thiscourt observed that identification tests are not substantive evidence andmay only be used for the purpose of helpingthe investigating agencywith the progress of the investigation.

E49. It was argued that the Shoeprint Report (Ex. P125) containscontradictory statements, making it unreliable. Further, it did not provideany conclusive material regarding the shoeprints found at the scene ofcrime and were found to be negative for matches. It was pointed outthat for shoeprints obtained by the police, no moulds were made fromthe availablephysical prints at the site and instead colour photos of theFfootprints were obtained. The camera used for taking such photos didnot have the time/date, though suchfeatures were available. Duringanalysis of colour photos, the photographs were found insufficient toreach any conclusion regarding the footprints in Ex. P118. It was arguedthat no individual shoe characteristics were found from the prints. TheGprint or design of the soles were missing in the photoprints, and it could notbe ascertained if the sole print of the sandal at H3 matched with any printfound at the scene of crime. However, inexplicably the report concludes

19 (1991) 4 SCC 536 (para 23)

20 (1999) 8 SCC 428 (para 4-5)H21 (1971) 2 SCC 75 (para 17)

that E8 and E9 are photos identical to H3. The shoeprint said to havebeen obtained from Neha does not specify whether it is of the right orthe left foot. It was submitted that this court in Pritam Singh v. State ofPunjab[22]and Balbir Singh v. State of Punjab[23]found that footprintsare weak andrudimentary evidence. Counsel urged that the evidenceled by the prosecution itself isweak and admits that there was insufficientmaterial to conduct thecomparison, yet the comparison was carried outas in terms of Ex. P125, the Examination Report, SFSL, Sagar. Further,the seizures relating to the shoeprints were only sent to FSL, Sagar on13.07.2011- as seen from Ex. P115 - after anunexplained delay.

50. Mr. Singh next argued that the fingerprint report relating tochance prints was not reliable,and at best can only be used ascorroborative evidence. In this regard, it was argued that the fingerprintsobtained from the crime scene were from an open place, accessible tothe public, between the period when the door had been opened by PW-5 till the arrival of the investigating agency. Whilecollecting chancefingerprints, no fingerprints of the persons present/neighbours, or othermembers of the household, were taken inorder to eliminate such prints.PW-3, PW-5, and PW-24 were cross-examined on this account. Theydeposed that the fingerprints of othersto whom the place was accessible,were not taken. With regard to the report (Ex. P84) prepared by thefinger-print expert, PW 24 K. K. Dwivedi while conducting the analysisof the fingerprints, some concerns were pointed out. Firstly, failure todescribe the method/procedure for lifting of the prints; secondlyfailureto obtain elimination prints of other persons, for which no explanationhas been provided by the police;thirdly, that the expert was unable toprovide an explanation about the fact that none of thefingerprintsanalysed matched those of any of the deceased persons;and fourthly,the expert did not explain why the process under the Madhya PradeshPolice Rules regarding dissection of fingerprint of corpses i.e., Rule 824,was not followed while obtaining the prints of thedeceased persons. Itwas further urged that the expert didnot provide robust process foranalysis. The analysis described by fingerprint expert PW-24 claims torely on an 8-point method. The method followed by PW-24 merelydescribes Level I of the ACE- V Method (Analysis, Comparison,Evaluation and VerificationMethod), used by investigating agencies across

22 AIR 1956SC 415

23 1996 (6) SCALE 72

Ajurisdictions. Level 2 and 3 of the ACE-V method was not followed.The 8-point matching system, followed for the analysis,was argued tobe insufficient and not in compliance with such method.Counsel reliedon Hari Om v. State of UttarPradesh[24] to argue that the question ofconfirmation bias in this regard cannot be ruled out, given that the printsof the accused were not anonymised whileproviding such information toBthe expert analysing the fingerprints.

51. Counsel for the appellants urged that in the present case, crucialcircumstances, such as Neha’s arrest (which constituted the breakthroughin the investigation), the narration and deposition of the chance witnessPW-10, and the inconsistences relating to the recoveries, as well as theCexpert reports, lead to grave doubts. It was submitted that in cases basedon circumstantial evidence, the five “golden principles” enunciated bythis court in Sharad Birdichand Sarda v. State of Maharashtra[25] haveto be fully established and that the court should be convinced that theaccused “must be” guilty and not “may be” guilty. Further, the facts soDestablished should be consistent only with the hypothesis of the guilt ofthe accused, that is to say they should not be explainable on anyother hypothesis except that the accused is guilty. The circumstancesshould be of conclusive nature and tendency. The circumstances shouldexclude every possible hypothesis except the one to be proved, and theremust be chain of evidence so complete as not to leave any reasonableEground for the conclusion consistent with the innocence of the accusedand must show that in all human probability the act must have been doneby the accused.

52. It was submitted that the complete “blackout” of the role ofDW-1, in the face of her admission to being involved with theFinvestigation, her receiving an out-of-turn promotion for solving the case,her deposition that she had analysed the CDRswhich were neverproduced, or relied on, and her involvement before Neha’s arrest, aswell as her involvement during the arrest and subsequent questioning, allpointed to grave doubts about the circumstances which actually led toGNeha’s arrest. It was strongly urged that this cast doubt on her entirerole. Likewise, the piecemeal recoveries affected on two different dates,at the behest of the three accused, the improbability of the accusedretaining incriminating articles like weapons, even while allegedly getting24 (2021) 4 SCC 345 (para 25, 38-41, 43)H25 (1984) 4 SCC 116

rid of clothes, shoes, and vehicles etc., cast doubts and suspicions aboutthe genuineness of recovery of the articles. It was argued that all this,coupled with the untrustworthiness of the chance witness PW-10 – hiscontradictions in deposition, admission to being stock police witness,and who by his admission saw the accused for very brief while, aswell as the inexplicable delay in holding TIP – together undermine theprosecution story about identification of the accused, and their allegedrole in the crime.

Submissions of the state

53. Ms. Swarupama Chaturvedi, learned Additional AdvocateGeneral (AAG) for the State of Madhya Pradesh, argued that this courtshould not disturb the concurrent findings of the appellant’s guilt recordedby the learned Additional Sessions Judge, and confirmed by the HighCourt in its impugned judgment. She submitted that though the case isbased on circumstantial evidence, the prosecution was successful inproving beyond reasonable doubt, every circumstance, and also inconclusively establishing the guilt of the accused/appellants, on acumulative reading of all circumstances. She emphasized that theconclusive nature of the evidence is such that any hypothesis of theappellants’ innocence is ruled out and that the only conclusion that canbe reached is that they and none others, are guilty of the crime of triplemurder, which they were charged with.54. Heavy reliance was placed on the findings in the ballistic report,wherein each circumstance was proved by the expert evidence. In thisregard, counsel relied on Ex. P25, the map of the crime spot prepared byPW-31 IO which found two fired cartridges (at Point 7) and one livebullet (at Point 6). The bullets were seized and recorded at Ex. P27, theseizure memo. The post-mortem report Ex. P44 indicated and forwardeda bullet, recovered from Megha’s body. The recovery of this bullet wasalso deposed to by PW-15 Dr. P. S. Thakur. The bullet was seized undermemo Ex. P127. Likewise, PW-32 had extracted bullet from Rahul’sfoot, in the early hours of 20.06.2011 at MY Hospital. The bullet wasdeposited under memo Ex. P113, in the hospital’s medico-legal cell. Itwas later seized under memo Ex. P108 on 23.06.2011. The seizure of aknife and pistol from Rahul’s possession was recorded at Ex. P14. Thispistol was examined and test fired: report, Ex. P120 was given by theballistic expert, confirming that the spent bullets (the cartridges of whichwere seized from the crime scene), the live bullet (also seized from the

CDE

Acrime scene), the bullet extracted from Rahul’s foot, and the bulletextracted from Megha’s body, were all fired from the same pistol, whichwas recovered and seized at the behest of Rahul (Ex. P14). Counselalso relied on Ex. P52 the report of the armourer. It was argued furtherthat the seizure, sealing and proper custody of these articles was spokento by PW-3, PW-5, and PW-19, besides PW-31 IO. There is neither anyBcontradiction nor any gap in their testimonies; further the ballistic reportfully support the prosecution version that the bullets recovered werefired from the weapon seized at the behest of Rahul, from his house.

55. The AAG argued that the ballistic report as well as medicalopinion establishes the fact that except one injury on deceased Megha’sCforehead, all injuries which caused death of all three deceased were dueto the two knives recovered at the instance of accused Rahul and Manoj.Learned counsel relied on the testimony of PW-15, the doctor whoconducted the post-mortems on the deceased, as well as his report (Ex.P44). It was argued that from the crime scene till report and thereafter,Dseals were maintained and the chain of custody of articles were constantlyintact, without any break. Seizure witnesses supported these facts intheir statements.

56. Regarding the shoeprints, counsel for the state relied on Ex.P31 and P32 (regarding seizure of shoes at the behest of Manoj); Ex.EP34 and P35 (regarding seizure of shoe at the behest of Neha); Ex. P21(seizure on 22.06.2011); Ex. P77 (inspection report of the crime sceneby PW-21 Senior scientific officer);Ex. P115 (forwarding of these samplesfor testing); Ex. P75 seizure memo of shoe recorded by PS Annapurnaon 23-06-2011; deposition of PW-20, who witnessed seizure of shoe;shoe print report (Ex. P125); and the deposition of the PW-31 IO. It wasFsubmitted that these witnesses did not contradict themselves, and theprosecution had fully and satisfactorily established the presence of theshoe print reports, as well as their matching, from the prints obtainedfrom the crime scene. These proved that the accused and no other werepresent in the premises, when the crime was committed.G

57. The AAG argued that the main motive behind the murderswas robbery. This was established by the recovery of the stolen articlespursuant to the disclosure statements proved by Ex. P10 and Ex. P11which were seized after Neha’s disclosure statement; the seizure ofarticles pursuant to statement of Rahul (Ex. P13 and Ex. P14); andHrecovery pursuant to statement of Manoj (Ex. P16 and P17). During the

TIP of the articles, PW-1 Niranjan Deshpande identified the looted articles(such as jewellery items) as those belonging to the deceased, which wasalso corroborated by the testimony of PW-12, the tehsildar. Furthermore,PW-4 Banno Solanki also supported the seizure of the ATM card fromNeha, when she was detained and later, arrested on 22.06.2011. PW-27,a bank officer, deposed that the ATM card (Ex. P98) recovered pursuantto Neha’s disclosure statement, was issued by his bank. It was urgedthat all these proved beyond reasonable doubt, the prosecution allegationsthat the accused had conspired and entered the premises where thedeceased lived, with the motive of looting. The disclosure and recoveryof the looted articles, as well as their recoveries and later identification,from the premises of the accused, disclosed their direct link with themurders, and established that they were the perpetrators.

58. It was submitted that the appellants have sought to discreditthe prosecution by alleging that Neha was arrested earlier, and for thatpurpose, exaggerated the role played by DW-1 Deepika Shinde. Theappellants sought to insinuate that that officer played prominent role inthe investigation, and was taken off it, and that her role in solving thecrime, earned her an out of turn promotion. The AAG urged that theappellants relied upon the statement of DW-1 Deepika Shinde,who hadnever claimed that she had made any arrest in the present case. As anofficer of the crime branch she was involved initially in assisting or helpingascertain the basic details, as the victims were women. DW-1 was postedwith unit called “We care for you”, which focusses upon women’sprotection. Soon after Neha’s arrest,the IO felt that DW-1 was not neededto do anything further. Her promotion was based upon her contributionand role in many cases and this being just one for her initial responsecannot be considered that significant. It was submitted that her hiddenrole, alleged by the appellants, is bogey. While she admitted to analysingcall details, it is forthcoming from the trial proceedings, that the calldetails had no role – much less any significance, in the investigation, orpinning the accused, their arrest, or recovery of articles at their behest.Therefore, the theory of the appellants’ counsels that Neha was notactually arrested as projected by the prosecution, or as found, is withoutany basis, but merely argumentative.

59. The AAG submitted that chance witness PW-10 witnessedthe immediate aftermath of the crime, as he saw the three accusedleaving after committing the crime. He described, at the earliest

Aopportunity- on 20.06.2011, that two boys (one injured at the ankle, andthe other at the elbow, and both bleeding as result of the injuries) weresitting on bike, when girl in Scooty appeared, and asked them to goto doctor for examination. The so-called discrepancies highlighted bythe appellants, are neither material, nor of such importance to discreditthe entire version given by him, in the course of his deposition in court. ItBwas urged that nothing worthwhile was elicited in PW-10’s cross-examination. He clearly identified the three individuals, at the earliestopportunity, i.e. after knowing about the occurrence of the crime andalso unhesitatingly identified them in court, in the presence of PW-18,the Naib Tehsildar. The latter witness corroborated the testimony ofCPW-10 as regards identification.60. The IO also proved seizure of Suzuki service book and clothes,at Neha’s behest on 23.06.2011 which linked with the recovery of thescooty (again, at her behest) later on that day, from place where it hadbeen hidden. The seizures were also corroborated by the testimony ofDPW-7, who further identified the articles (Ex. Z-1, Z-2 and Z-3) in court.

61. Ms. Chaturvedi submitted that the fingerprint expert’s evidenceunerringly pointed to all appellants’ complicity and guilt. It was highlightedthat four sets of fingerprints were lifted, by PW-24 (i.e., Ex P80) on19.06.2011. The fingerprints of the deceased (Ex. P81, Ex. P82 and Ex.EP83) were lifted on 20.06.2011, by Constable Dinesh. The fingerprintsof the three accused/appellants were obtained on 24.06.2011 (Ex. P41,Ex. P42 and Ex. P43) by PW-13 constable Vijay Singh. His depositionwas sought to be discredited by the appellants, by pointing out that whilethe fingerprint samples were obtained, according to him, the accusedhad signed on the forms (but which were not actually found); and further,Fthat the forms did not contain the photographs of the accused. The learnedAAG pointed out that the form used, is the one as required in the MadhyaPradesh Police manual, and there is no requirement of witness, at thetime of obtaining fingerprint samples. Furthermore, the cross examinationof this witness was not worthwhile as nothing significant was elicitedGfrom them.

62. The AAG emphasized that the report of the fingerprint expert(Ex. P84) dated 11.07.2011 by PW-24 K.K. Trivedi, fully supported theprosecution. It established that four fingerprints could be developed andcompared with chance fingerprints found at the crime scene. The reportHclearly stated that two fingerprints lifted from the site (A and B) matched

with the sample fingerprint of Rahul; fingerprint matched with thefingerprint of Manoj and fingerprint matched with the fingerprint ofNeha. PW-17 Satyanarayan Patel had photographed the crime scene,including the spots where prints were collected, which corroboratedbeyond any doubt, that the appellants were present at the crime scene.

63. It was argued that crucial circumstance that has to beconsidered is that appellants Rahul @ Govind and Manoj were also injured.PW-30 R.S. Makwana, ASI who was posted at Annapurna PS statedthat the appellant No. 2 Rahul @ Govind’s leg was wounded. This wasalso informed to T.I. Gaurishankar Chadar, who wrote dehatinalisi (Ex.P103); Crime no. 377/11 under Sections 294, 307, 34 IPC was registered.PW-26 Mukesh Bhachawat deposed that on 19.06.2011 ConstableDinesh of Annapurana PS brought accused Rahul; he found an injuryonhis right toe, which had charring firearm wound. The statement of theIO was that on the basis of information received from Rahul, shoe(size 44) for the left leg was recovered in the presence of witnessesfrom the nearby RTO Office. Both the shoes which were seized werebrown coloured with three holes and seized within the jurisdiction of PSAnnapurna. One shoe had gunshot mark and the other shoe belongedto Rahul. From the statement of the medical officer, the right toe of rightleg of Rahul @ Govind had gunshot injury and the recovered rightshoe had gunshot hole. Rahul’s medical report supported the fact thathe had sustained one gunshot injury on the toe of his right leg.

64. It is argued that the DNA reports established that the bloodstains found on shoes and clothes of accused, matched the body fluid ofthe deceased. The DNA report, coupled with deposition of PW-35established that body fluid of deceased Megha was found on Rahul’sarticles (Ex. F4, F5); body fluid of deceased Ashlesha was found onManoj’s articles (Ex. G1, G3); and Neha’s sandal (Ex. H2) had tracesof deceased Megha’s body fluids.

65. The learned counsel argued that the facts of the case wereproved by the prosecution beyond reasonable doubt toindicate that theaccused and none else, were the three persons who had committed thecrime for which both courts below had convicted them. It was arguedthat no prosecution can prove facts perfectly and that some lapses orinconsistencies are bound to occur, given the tricks memories play becauseof which witnesses may not recollect events perfectly or in chronological

Aorder. To make her point, the AAG relied on the observations cited bythis court in Moosa Patel v. State of Gujarat[26].

66. It was lastly argued that the appellants offered no explanationwhen the incriminating circumstances were put to them, under Section313 CrPC. It was stressed that this court in many decisions has in factBheld that examination of accused under Section 313 CrPC manifests theprinciples of natural justice- audi alteram partem, by curtailing allinterferences at that stage from counsel, prosecutors, witnesses, thirdparties, etc. The accused may be asked to furnish some explanation asregards the incriminating circumstances associated with him, and thecourt must take note of such explanation. Therefore, by essentiallyCestablishing dialogue between the accused and trial court, theexamination of accused under Section 313 CrPC is not mere formalityand the answers given by the accused have practical utility. It wassubmitted that the complete lack of any explanation, much less areasonable explanation, only meant that the accused could not justifyDtheir conduct; they had no argument to offer.

67. In view of these submissions, the AAG concluded that thiscourt should not interfere, under its special leave appellate jurisdictionwith the concurrent findings of guilt, recorded by the courts below, basedon full and fair appreciation of all the evidence and material on theErecord.

Analysis and Findings

I. Neha’s arrest

68. PW-28 (Vijay Singh Chauhan) deposed that he saw NehaFloitering suspiciously at 6.00 AM on 23.06.2011, near an ATM. He relayedthis to P.S. MIG, where the information was received by PW-19 Gaikwad.The IO(PW-31), formed team consisting of PW-13 (Vijay Singh), PW-36 (Mulayam Singh), Constable Devendra and PW-4 (Banno Solanki,the woman constable). This party went to the site, and confronted Neha;her body search was conducted by PW-4 which yielded Ashlesha’s ATMGCard. The search memo (in which time recorded is 06.40 AM) wasproduced as Ex. P22. Neha was taken in for questioning and later arrested.

69. PW-28’s testimony is supported by PW-4, PW-31 and PW-36. However, deposition of PW-19 (Y.R. Gaikwad) is silent about the

H26 (2011) 2 SCC 198 (para 22)

reporting of Neha’s suspicious activity – and what was deposed by PW-28, as corroborated by others. Constable Devendra was not examined.This omission is per se, insignificant because while proving certain factsand events if by and large, witnesses are consistent, any omission canbe overlooked.

70. Nevertheless, few aspects urged by the appellants withrespect to the events proximate to, and surroundingNeha’s arrest bearscrutiny. DW-1 Deepika Shinde (who was promoted as inspector whenshe deposed) – admitted to analysing call detail records and importantly,to receiving information -from an undisclosed‘source’- that Neha wouldbe at the spot – from where she was ultimately arrested on 22.06.2011,and that she would be in jeans and maroon-coloured top. DW-1 deposedthat she had received this tip offprior to Neha’s arrest, i.e., before 6:30AM, and she shared this this information with the police. PW-28, however,denied the involvement of DW-1.During the trial, the defence had reliedon certain documents – notably Ex. D-32 and Ex. D-46, to say that DW-1 received an out of turn promotion for her role in solving the crime.That out of turn promotion was givento DW-1 and PW-28, was admittedby both of them. It is evident, therefore, that DW-1 received priorinformation regarding Neha’s likely whereabouts and further details evento the extent of description of her attire. The prosecution’s studiedsilence with respect to her role is not just mystifying but is matter ofconcern.

71. The prosecution sought to establish through the testimonies ofthe IO as well as PW-3 (Deepak Ranade) and PW-6 (Triyambak @Prafulla), that Neha was taken to the police station and questioned.Theythen proceeded to Neha’s house.As per the IO’s testimony, the raidingparty included PW-19 and PW-4. The further prosecution case in thestatements of PW-31, PW-3 and PW-6 was that Neha was interrogatedon the way to her house and later arrested, after which her disclosurestatement was recorded leading to the recovery of the stolen articles ather behest. At this instance also there was not even slight whisper byany prosecution witness about DW-1 Deepika Shinde’s role.

72. During her deposition, DW-1 affirmed that she had gone tothe crime scene on 19.06.2011 itself.She also admitted that

“I had analysed call records in the instant case.Today, I cannottell as to which call and as to how it was analysed by me.Ihad not investigated the instant matter.I recall that I had

Ainterrogated one accused in this matter later.I might haveinterrogated lady accused (Neha Verma) present in the Courtis the same person whom I had interrogated.”

Later, DW-1 was unable to state the precise time in terms ofnumber of hours after the incident when she had interrogated Neha.BHowever, she was clear that she did so after Neha’s arrest by PSMIG.She further clarified that she had “interrogated Neha Verma inMIG Police Station itself.”PW-7 Sandeep Narulkar who concededlyjoined the investigation as panch witness on 23.06.2011, admitted inthe cross-examination that DW-1"Police Sub-Inspector was not withus, she was in other vehicle”.This witness was cross-examined onC02.03.2012 but he failed to identify her on that day.He, however, admittedthat he could not remember how many lady officers were present duringthe investigation on 23.06.2011 i.e., the day on which he was asked topresent as witness.73. As observed earlier, an interesting feature is the fact that closeDon the heels of the arrest of the present appellants and recovery ofincriminating articles, the police department promoted some of its officersand employees including DW-1 and DW-28.Both these personnel didnot belong to the MIG Police Station but were positioned in the CrimeBranch.Ex. D30 (proved by DW-4 Pawan Srivastava, Inspector GeneralEof Police who had issued it) which was placed on record during thecross-examination of PW-1, is the order issued by the office of the SeniorSuperintendent of Police, District-Indore on 26.06.2011 bearingS.No.SSP/Indore/PA/Reward/11/2005A. Its inter alia pertinently readsas follows: -

“In the afternoon on 19.06.2011, gruesome murder of BankFOfficer Niranjan Deshpande’s wife Megha Deshpande,daughter-Ashlesha Despande and mother-in-law RohiniFadke residing in the first floor of House No. 24, ShrinagarMain Colony in posh area of the city was committed bystabbing with knife. Total 22 stab wounds were found theGperson of Ashlesha.

On coming to know about this triple murder, within no timeresident near to the place of incidents gathered, the crowdwas so big which created law and order problem.The murderscommitted in the broad daylight, raised many questions onHthe functioning of Indore Police and pubic started questioning

that when women are not safe in posh colony situated in thecenter of the city then how the women residing in other partor the city will feel themselves to be safe. All the police officersrushed to the place of incident and started taking control oflaw and order. Electronic Media and Newspapers widely airedthe said incident which resulted fear in the mind of publicalso their trust in the police administration weakened. Keepingin mind priority and gravity of the said incident, SeniorOfficers Constituted police team of able officers & officialsin which Sub-Inspector Deepika Shinde (In-charge We Carefor You) and R. 2906 Vijay Singh were specially included inthe team and at the same time the declaration of reward to thepolice officer solving the incident, was made.

Immediately after the incident, at about 20.00 hours in thenight on 19.06.2011, through Police control Room, directionswere issued to Sub- Inspector Deepika Shinde to reach at theplace of incident i.e. 24 Shrinagar Main immediately. Afterreaching the place of incident, she discussed with the familymembers and neighbours about the people Visited at the timeof incident whereupon it revealed that before the incident afriend (female) of deceased Ashlesha was seen leaving herhouse and secret information about her other activities weregathered.

Under the supervision of Manoj Rai, Additional District CrimeBranch Superintendent of Police, District Crime Branch andJitendra Singh, Dy. S.P,. District Crime Branch, call detailsof mobile numbers [REDACTED], [REDACTED] and[REDACTED] of deceased Ashlesha Deshpande and MeghaDeshpande respectively were obtained. Sub-InspectorDeepika Shinde was deputed to analyse and gather detailedinformation about college mates of deceased Ashlesha anddeceased Megha Deshpande’s colleagues working in Oriflamecompany who using her professional skill and technique,noticed mobile No.[REDACTED] regularly talking todeceased Megha on the date of the incident and prior theretostated location of the said suspected mobile phone to be atthe place of incident. Later Sub-Inspector Deepika Shindeestablished through call details location and IMEI search,

the said suspected mobile was being used by Neha’s fatherAnil Verma r/o Indore and at present mobile Nos. [REDACTED]& [REDACTED] stated to be used in the said mobile.

On 22.06.2011, through analysis of call details of theSuspected mobile number, Sub-Inspector Deepika Shinde,Bestablished Neha Verma r/o H.N.10 Devendra Nagar Indoreto be Connected with the said incident. In addition, Sub-Inspector Deepika Shinde using her information system andintelligent inputs, gather this information that today on 22(illegible) Neha Verma wearing black jeans pant and marooncolour top has left home and on analysing the call detailsCofsuspected Neha Verma, present location of suspected NehaVerma to be near LIG Tiraha Indore to R. 2906 Vijay Singh.

After the incident, not finding any clue or the incident despiteall out efforts for three days by the Indore Police, crisis oflaw and order has been created due to pressure and protestDfrom public, media and other social organisations. In suchcircumstances, Sub-inspector Deepika Shinde by her all-outefforts and devotion for continuous 72 hours, established alead in the form of Neha Verma for identification & arrest ofthe killers and working on the same this triple murder caseEwas solved and succeeded in arrestof Neha Verma and otherRahul @ Govind Maratha and Manoj Balai involved in thecase.

While interrogating female accused Neha Verma extensivelyby applying psychological method, S.I. Deepika ShindeFextracted information about accomplices and also extensivelyinterrogating other two accused, collected information aboutthe incident which led to solving in the case.

Sub-inspector Deepika Shinde showing her proficiency inanalysis showing her proficiency in analysing call details and

Gprofessional skill with her hard work and devotion gatheredand made available information of identification, appearance,name and address of the first suspect Neha Verma and herinvolvement incident on the basis of which only directionfor search for accused of the incident be fixed.

HXXXXXXX

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Sub-Inspector Deepika Shinde establishing identity of theaccused of the unknown accused in the said triple murderhas played significant role in solving the case which showsher professional excellence, perseverance and devotion forduty. Had she not established identity of Neha Verma, accusedin the said triple murder case, arrest of the accused in thesaid was impossible and by her ability, she has establishedidentity of the accused persons and solving the said case, agood message went in the public and their confidence wasre-stored in police. In the past as well, service of the Sub-Inspector has been excellent.

In view of the said brave and commendable work by Sub-Inspector Deepika Shinde, under Para No. 70 (a) of PoliceRegulation, she is recommended for out of turn promotion tothe post of Inspector keep her morale high and in future,while discharging her police duties with diligence andperseverance, she brings laurels to the department.”

74. Similarly, in reply to an R.T.I. query by DW-6 Anil Verma(Neha’s father), the P.I.O., Police Headquarters at Bhopal sent response(dated 22.05.2012), No.PH/10/Record/RTI/70/12/506/12.The materialpart of this document, produced as Ex. D-46, is extracted below:

“Subject: Information under Section 6 (1) Right toInformation Act, 2005.

Reference: Your application dated 29.02.12,16.03. 2012,23.03.12 and 26.03. 12.

Kindly peruse above referred applications informationreceived sought on two points by you, is as under:

1. Photocopy of Committee Report dated 24.12.2011regarding out of turn promotion to Sub-Inspector DeepikaShinde, is enclosed.

2. On 19.06.2011, Smt. Deepika Shinde, Sub-Inspector onsearching arrested Neha Verma, Rahul @ Govind and ManojBalai, the main accused of triple murder case of Bank OfficerNilanjay Despande’s wife Megha Deshpande, daughter-Ashlesha Deshpande and mother-in-law Rohini Phadkeresiding in House No. 24, Shrinagar Main Colony, under PS-MIG, Indore City.”

A75. The admissions by DW-1 on three aspectsi.e., (a) analysingcall details in respect of certain mobile numbers; (b) obtaining sourceinformation from an informer which was passed on to MIG Police Station;(c) interrogation of Neha after her arrest,in the MIG police station, thusstand proved. PW-7’s deposition also suggests that DW-1 was with theinvestigation team even on 23.06.2011 and hence, provides independentBcorroboration in supporting the appellants’ arguments in this regard.

76. DW-1’s role in the pre-arrest, intelligence-information gathering,the arrest, interrogation of Neha, which the prosecution tried to studiouslykeep away from the court thus, leads one to conclude that its versionwith respect to apprehension and arrest of Neha are not believable.It isCalso matter of record that DW-3, the then Inspector General of PoliceSanjay Rana admitted that the police department had issued Ex. D32 on04.10.2011 containing list including at S.No.26 - an unnamed informant-of persons given awards for their contribution.In the present case, allthese materials i.e., evidence of DW-1 and DW-7 as well as theDdocuments issued by the police departments/state governments itself,clearly points towards the involvement of DW-1, not merely at peripheralstage, but on pervasive basis, even after, in regard to the enquiry in theimmediate aftermath of the crime, gathering intelligence information withrespect to the probable accused; analysing call details, participating inthe arrest, interrogation of the accused and even an involvement withEfurther investigating steps leading to recovery of articles.

77. DW-6 Anil Verma (Neha’s father) in his statement had deposedthat Neha was taken away for questioning much earlier, on 19.6.2011itself. He deposed that on 21.06.2011 one Kishan Panwar from CrimeBranch went to him and said that Neha was using stolen mobile phoneFfor which an inquiry was being conducted.At his behest, DW-6 askedNeha to reach home immediately.Once she reached, DW-6 contactedKishan Panwar and informed him about her return from the office.Hereached DW-6’s house 15-20 minutes later with DW-1.They checkedNeha’s mobile phone and then left the place stating that Neha would beGtaken for about an hour and half for inquiry. DW-1 did not disclosewhere she would be taken but allowed the witness DW-6 to accompanythem at distance.According to DW-6, Neha was taken to SP’s Officeat Regal Crossing and taken upstairs.The witness was not allowed to gothere, andinstead was asked to leave, at which point he went homealong with his son. He stated further that on 23.06.2011 at 07:30 AM orH

so he was asked telephonically to keep Neha’s clothes outside, as thepolice was coming to collect them.The police reached DW-6’s house inthe evening at which point they took maroon top and one pair of jeans.The witness was cross-examined by prosecution to suggest that hisdeposition was false; he denied it.

78. What is evident from an overall reading of the prosecutionversion as compared to the testimonies of DW-1, DW-3 and DW-4 aswell as the documentary evidence is that the “breakthrough”, claimedby the prosecution resulting from Neha’s arrest on 22.06.2011 is notcorrect.The police had knowledge about the sim cards of deceasedAslesha and Megha. Apparently, the call details of these were analysedby DW-1.However, the prosecution kept these details away from thetrial.Likewise, although PW-28 and PW-31 both elaborately describedhow Neha was arrested (especially role played by PW-4, PW-19 whorelayed the information and the participation of PW-3, PW-6 as well asPW-36),all of them were conspicuously silent about DW-1. WhereasDW-1 admitted, in no uncertain terms, at two different places, to havingparticipated in the interrogation of Neha and also having given information-regarding her likely whereabouts including the clothes that she wouldwear,leading to her arrest.The cat was out of the bag, so to say whenPW-7 admitted that DW-1 participated in the recovery of articles on23.06.2011, day after the arrest of all the appellants.

79. Having regard to all these circumstances, the prosecutionversion with respect to Neha’s arrest and interrogation cannot bebelieved. The suppression of these facts, from the court, attracts anadverse inference that the prosecution’s version with respect to mannerof Neha’s arrest, and the role of DW-1, is unreliable.

80. The question which then arises is: what is the impact of therejection of the manner of Neha’s arrest in the prosecution’s case? Theappellant urged that, the entire story – i.e., disclosure statements andthe recoveries effected on 22.06.2011 and 23.06.2011, has to be rejected.This court is of the opinion that such drastic approach is uncalled for.Concededly the present case is entirely based on circumstantial evidence.The rejection of the prosecution version with respect to Neha’s arrestwould mean that only that circumstance is held not to be proved. It is notthat Neha’s arrest provided sole foundation of the prosecution case. Insome ways, it is an entry point; its rejection would mean that the courtshould proceed cautiously with other evidence, objectively determine

Awhether all other circumstances were proved beyond reasonable doubt,and whether in the end the guilt of the accused and not others, has beenso proved.

II. Circumstances relating to arrest of theotherappellants

81. If the circumstances leading to Neha’s arrest on 22.06.2011Bbe disbelieved, what remains as matter of the record is that she wasinterrogated in the presence of PW-3 and PW-6 that day. It is necessaryto analyse the depositions of these witnesses. PW-3 is relative of thedeceased, as well as Niranjan Deshpande (PW-1). He was present on19.06.2011 and witnessed the seizure and sealing of blood samples,Cfingerprints and the articles found at the crime scene. He was also awitness to the inquest proceedings. He deposed that the IO (PW-31)asked him, in the morning of 22.06.2011 to reach the Police Station, withsome other person. PW-31, however, did not support PW-3 about askinghim to bring another person. Nevertheless, PW-3 and PW-6 reached thepolice station at around 7:30 AM.Neha’s arrest is shown at 08:10 AM;Dthe disclosure statement and recovery of two golden bangles, brokenmangalsutra, 3 guriyas, gold pendant, an ATM card belonging todeceased Megha, an Oriflame perfume bottle and an Oriflame form(apparently with Megha’s signature) were witnessed by PW-3. He alsodeposedwith respect to the arrest of Rahul (at 9:00 AM), disclosureEstatement by him and recovery of various articles i.e., pistol, knife,two golden bangles, part of broken mangalsutra containing “guriya”and chain (weighing approximately 9 grams), black guriya, and Rahul’sphotograph (wearing black beaded bracelet on his right hand). Hefurther testified to the arrest of Manoj at 10:05 AM, on 22.06.2011, hisdisclosure and pointing to articles, leading to their recovery (Ex. P16&FEx. P17). The recovered articles included two golden bangles, portionof broken mangalsutra, knife and photograph with Manoj insunglasses. PW-6 corroborated those facts.

82. PW-3’s testimony was impeached pointing to the discrepancyin time. He reached the police station after 7:30 AM. Further, in cross-Gexamination, the witness was not able to depose about particulars of thehouses the police party went to, who were there, etc. Likewise, questionmark was raised about PW-6. It was urged that the IO never askedanother witness to accompany PW-3. It was urged these witnesses areinterested persons, as they are related to the deceased and PW-1.AnotherHargument regarding the recoveries on 22.06.2011 were that it is

unbelievable that Rahul and Manoj would have kept the looted articlesand the weapons used to assault and kill the deceased, given that theytried to dispose of other articles such as shoes, camera, clothes, etc. andhide the bike and scooty, etc. In the opinion of the court, the manner ofarrest of these individuals, has been spoken to by and largeconsistentlybythe two witnesses PW-3 and PW-6 who have corroborated the IO’sdeposition. However, in respect of Neha, what is not explained is whyPW-4 (Banno Solanki) did not participate in her arrest and search of herpremises. After having called PW-4, to ensure compliance with the lawthat woman police constable should apprehend, search and arrest afemale accused, the prosecution has offered no explanation as to whyPW-4 was not involved in the further proceedings. PW-4 admitted thatshe was sitting in the car when the team proceeded to Neha’s house.Her presence in the team is confirmed by PW-3 as well as the IO. PW-4 herself does not corroborate the prosecution version about recoveriesmade from Neha’s house.83. As observed earlier, the seizure memos detailing the articlesseized at the behest of the accused: Ex. P11 (Neha) included an ATMCard which belonged to Megha, the deceased; Ex. P14 (Rahul) includedlooted jewellery (golden bangles, part of broken mangalsutra), countrymade pistol, knife measuring 35.5 cm, and photograph of him wearinga black diamond-like beaded bracelet on his right hand; Ex. P17 (Manoj)included looted jewellery (two gold bangles, part of brokenmangalsutra), an iron knife of overall length of 34.5 cm and photographof him wearing brown coloured sunglasses.As per the prosecution, thesearticles are related to their crime.

84. PW-3 and PW-6, both depose that after the seizure of thearticle each of them remained with the police till 5:00 PM on22.06.2011.The prosecution version is that the arrest of all three accusedpersons were completed by 10:05 AM, their disclosure statementsrecorded, and all the articles seized by 10.35 AM (as per Ex. P17).Thereis no explanation as to why further investigation was not taken up.Allthat seems to have occurred on 22.06.2011 thereafter, i.e,. after 10:35AM, was the nails of the accused were cut and seizure memos prepared(as deposed to by PW-3 and PW-6). The seizure memos in this regardare Ex. P18, P19 and P20. These were drawn in the early afternoon:Ex. P18 (13:05 hrs); Ex. P19 (13:15 hrs) and Ex. P20 (13:25 hrs). Theprosecution alleged that later at Rahul’s behest the left shoe worn by

Ahim during the incident was seized at 16:40 hrs from an open area nearhis house (Ex. P21).

85. The prosecution did not explain why there were breaks in theinvestigation, given that the disclosure statements of all accused,andconsequent recoveries took place in the morning of 22.06.2011.It is alsoBa matter of record that though the accused were arrested that day theywere only produced before the magistrate on the next day.In other words,there was no impediment for the police to have proceeded further ortaken immediate steps to secure all evidence.This aspect is, in this Court’sopinion, important because even if the manner in which Neha was arrestedwas to be discounted (as discussed earlier) the fact that they wereCarrested in the presence of PW-3 and PW-6, further proceedings andinvestigative steps including the seizure of articles at the behest of theaccused and pursuant to their statements, stand proved.These are reasonswhy the events of 22.06.2011 (after the arrest of the accused, andrecoveries were made at their behest) have to be segregated and seenDdifferently from the events and circumstances relied upon by theprosecution on other dates.

86. The credibility of PW-3 and PW-6, in this Court’s opinion,cannot be doubted.PW-3 was present on 19.06.2011, after discovery ofthe murderous attack and PW-1 Niranjan Deshpandestayed with himEafter reaching Indore. He (PW-3) was the deceased Rohini’s nephewand even performed the funeral rites of the deceased.Likewise, PW-6lived in Village Barlai which is about 45 minutes by bus, from Jaora(where PW-3 resided). He knew PW-3 and had known Rohini for about10-15 years.He reached PW-3’s house when the latter asked him toccompanyy him to the police station, since Neha had been caught andFher search had yielded an ATM card which belonged to Ashlesha. Ofthese two witnesses, PW-3 is related to the deceased; however, PW-6was not. Both witnesses corroborated each other’s testimony and provethe prosecution story about Neha’s questioning, her arrest, disclosurestatement, recoveries made pursuant to her statement, as well as thearrest, disclosure statements and recoveries made from Rahul andGManoj.Furthermore, there is no discrepancy between their testimoniesand that of the IO (PW-31). Another piece of evidence is that PW-27,an officer of Bank of India, Ujjain deposed that he issued letter (Ex.P98) to the SHO containing the ATM card numbers. Megha’s ATMcard, recovered pursuant to Neha’s disclosure statement, was issued byHhis bank; this was among the articles seized on 22.06.2011.87. An overall analysis of the testimonies of PW-3 and PW-6shows that despite some inconsistencies, which can be put down toimperfect or faulty recollection of sequence of events, or about the peoplepresent etc., their testimonies are credible. The effect of their depositionsis that they witnessed the disclosure statements of Neha, Rahul andManoj, and also witnessed the recovery of articles and their seizure bythe police, which were recorded in seizure memos (Ex. P11, P14 andP17).

III.Recoveries of 23.06.2011

88. PW-7 Sandeep Narulkar is an independent witness, whotestified to the disclosure statements of the accused Rahul and Manojon23.06.2011 and the recoveries made pursuant to it. He deposed towitnessing Rahul telling the police about the incident of 19.06.2011 andthat in that incident, camera and two mobile sets were looted. Rahulgave information about the camera, motorcycle, clothes worn, and knifeused at the time of incident; he said that he could get the articlesrecovered. Then police prepared disclosure memo (Ex. P28) witnessedand signed by PW-7. He said that on Rahul’s direction, the policerecovered the motorcycle in question from beneath small bridge overPithampur road, onedark brown coloured trouser, afull sleeved greycoloured shirt, and blood-stained iron knife with metal handle (Ex.P29).Further, the police also seized lens of broken camera (Ex. P30).Both seizure memos (Ex. P29, P30) contained PW-7’s signature.Whenshown in Court, he also identified the articles (brown colour full pant,knife, one lens of broken camera). He further statedthat policeinterrogated Manoj before him and Manoj gave information aboutrobberyand murder, and about the clothes and shoes worn at the timeofincident and told that he could get them recovered. The police thenprepared memorandum Ex. P31 containing the witnesses’ signature.Asper Manoj’s direction, the police seized “firoji” coloured t-shirt, blackcoloured blood-stained full pant, blue underwearand pairof micro-leather black coloured shoes from his father’s house; the seizure memofor these articles (Ex. P32) also contained his signature. He identifiedthe articles -clothes, shoes anda broken Samsung mobile phone, recoveredby police from vacant plot near Maruti showroom under seizurepanchnama (Ex. P33) with the witnesses’ signature. He mentioned thatthe mobile phone’s IMEI number was 352450/03/115949/9.

A89. PW-7 also witnessed Neha’s interrogation whereshe providedinformation aboutcommitting robbery and murder; and told the policethat she had hidden and could point out clothes and sandals worn at thetime of incident, and Suzuki Access vehicle (Ex. P34). At her pointingout, the police seized the Suzuki Access Scooty in question, from behindthe old OPD of M.Y. Hospital, from which: one service book, one blood-Bstained pink full sleeve shirt with white lining, light blue coloured jeanswith three buttons on the back pocket, pair of ladies black colouredhigh heeled sandals with brown strip attached at the front and in theback of which, above the heels chain was attached containing bloodstains. These were seized by police (Ex.P35) containing the witnesses’Csignature. PW-7 identified these articles in court.90. An overall reading of the depositions of PW-7 and PW-13shows that disclosure statements were made by all the accused in themorning of 23.06.2011.However, the recovery of articles pursuant tothe disclosure statements were in the afternoon: Ex. P29 (which relatesDto Rahul and evidenced the seizure of the motorcycle, knife and hisclothing) was at 15:30 hrs; Ex. P30 (which too at the behest of Rahulleading to seizure of broken camera) at 16:40 hrs; Ex. P32 (pair ofshoes, t-shirt, trouser and an underwear seized at the behest ofManoj) at 14:45 hrs; Ex. P33(the other seizure at Manoj’s behest, ofbroken mobile phone) at 16:00 hrs; and Ex. P35 (seizure of clothingEitems, blood-stained black sandals and Suzuki Scooty, at Neha’s behest)at 17.30 hrs.The prosecution made no attempt to show why piecemealrecoveries were made when according to its witnesses, on the very firstday i.e.,on 22.06.2011, all the three accused had disclosed their roles inthe crime and their willingness to cooperate as well as the recovery ofFthe articles related to the crime - including those belonging to them orhidden by them.

91. The second unexplained feature is why two sets of witnesseswere joined in the proceedings, on two consecutive dates.PW-3 andPW-6, witnessed the arrest of the three accused, their disclosureGstatements and recoveries made on the first day i.e., on 22.06.2011. Anentirely different set of witnesses were called on the next day i.e.,23.06.2011 (PW-7 and Prakash Ichke).Furthermore, one of the recoverywitnesses for 23.06.2011 (Prakash Ichke) was not examined. As notedpreviously, the recovery witnesses received phone call at around 7-8AM and were asked to report to the Police Station which they did atH

around 8-8.30 AM on 23-06-2011; the disclosure statements made bythe accused on that day were recorded at different points of time butbefore 10.00 AM.However, the prosecution does not explain the absenceof any activity between around 10AM and 1.30 PM when the firstrecovery was made that day.PW-7on his own admission stated that hewas acquainted with the deceased family; apparently, his cell phonenumbers was known to them.As noted earlier, he also admitted thatDW-1 Dipika Shinde had participated in the investigation proceedingsthat day.92. All these factors, in the opinion of this court cast doubt on theprosecution version as to what occurred on the next day i.e.,23.06.2011.Given that the accused were detained and arrested in theearly morning of 22.06.2011, that they made disclosure statements, andthere were recoveries that dayat their behest, which were completedthat morning itself, the instalment or episodic procedure adopted by theinvestigation, throws doubts about its veracity.Nothing prevented theprosecution from acting on the statements made by the accused andcollecting all the evidence – which by its admission was readily availableand easily accessible (given the knowledge of the accused which theywere willing to share) on the day of their arrest on 22.06.2011.Even ifthere were some impediments, in terms of, lack of time or otherwise,theinvolvement of an entirely different set of panch witnesses, withoutexplaining why the other witnesses who had evidenced recoveries on22.06.2011 could not be asked to participate, underlines that doubt.Thedoubt gets further heightened by the fact that PW-7 knew the deceasedfamily - and also claimed that his mobile number was available withthem.The IO (PW-31) does not in his statement say anything about this.Hewas silent as to why PW-7 instead of the other three was involved in theproceedings in 23.06.2011, and regarding the non-examination of PrakashIchke, the other witness to the recoveries.Since all the recoveries weremade from open areas with no special features to highlight whether theywere from certain hidden spaces, such recoveries of articles cannot beequated with the kind of recoveries made on 22.06.2011.This aspect isimportant because clothes seized by the police (which according to theprosecution were lying in open area, and thus exposed to elements) werearticles from which samples for DNA were collected to ascertain ifthere were any matches with the DNA markers foundon samplescollected from the deceased and the crime scene.

CDE

AIV.Testimony of PW-10, the eyewitness

93. The prosecution relied heavily upon the testimony of PW-10.This witness claimed that in the evening of 19.06.2011, he saw twoboys trying to start motorcycle one of them was bleeding from theankle, and the other, at the forearm.He added that girl arrived on aBScooty and advised them that it would be better to go to the hospital.Thewitness alleged that he had informed the police on the day after theincident i.e., 20.06.2011. He stated in cross-examination that after learningabout the murder he claimed that he went to the police station. Later, hesaid that he went there to obtain “gumasta” license. He admitted thathe did not read newspapers but added that when he went to the policeCstation, there was some discussion going on about the murder, upon whichhe volunteered to provide information and got his statement recorded.Thewitness said that he owned tea shop and worked as property broker;he later admitted that he did not have any registration as propertybroker.He also admitted to having previously deposed as witness onDbehalf of the police in some other case. PW-10’s presence near thescene of crime, or rather after it, is explained by him, somewhatunconvincingly, as his effort to ascertain if some property was vacant.He is what one can call as chance witness.

94. chance witness is one, who appears on the scene suddenly.EThis speciesof witness was described in Puran v. State of Punjab[27]inthe following terms:

“Such witnesses have the habit of appearing suddenly on thescene when something is happening and then of disappearingafter noticing the occurrence about which they are calledFlater on to give evidence.”

This court has sounded note of caution about dealing with thetestimony of chance witnesses. In Darya Singh v. State of Punjab[28 ]itwas observed that:

“…where the witness is close relation of the victim and isGshown to share the victim’s hostility to his assailant, thatnaturally makes it necessary for the criminal courts examinethe evidence given by such witness very carefully and scrutinise

27 AIR 1953 SC 459H28 1964 (7) SCR 397

all the infirmities in that evidence before deciding to act uponit. In dealing with such evidence, Courts naturally begin withthe enquiry as to whether the said witnesses were chancewitnesses or whether they were really present on the scene ofthe offence.…..If the criminal Court is satisfied that the witnesswho is related to the victim was not chance-witness, thenhis evidence has to be examined from the point of view ofprobabilities and the account given by him as to the assaulthas to be carefully scrutinised.”

In Jarnail Singh v. State of Punjab[29]again, this court held that:

“22. The evidence of chance witness requires very cautiousand close scrutiny and chance witness must adequatelyexplain his presence at the place of occurrence (Satbir v. SuratSingh[30], Harjinder Singh v. State of Gujarat, AcharaparambathPradeepan and Anr. v. State of Kerala[31] and Sarvesh NarainShukla v. Daroga Singh[32]). Deposition of chance witnesswhose presence at the place of incident remains doubtfulshould be discarded (vide Shankarlal v. State of Rajasthan[33]).”

95. In the opinion of this court the deposition of this witness (PW-10) cannot be taken at face value.PW-10 improved upon his statementmade to the police and was confronted in this regard. His initial statementto the police did not mention the presence of the girl (whom he identifiedas Neha in court). Likewise, he improves upon his statement, by deposingin court that the girl had asked two boys to one injured seriously to thehospital. In addition, his contradictions as to what led him to the policestation on 20.0.2011 – obtaining gumastalicense, or to report the crime;–and his presence at the scene of the crime as property broker checkingvacancy of property, who admittedly had no license for this business,are material. These contradictions are serious inasmuch as they strikeat the root of the witness’s credibility. His prevarications andimprovements especially about the presence of girl are too serious andfundamental to overlook. Very crucially this witness appears to be

29 (2009) 9 SCC 719

30 (1997) 4 SCC 192

31 (2006) 13 SCC 643

32 (2007) 13 SCC 360

33 (2004) 10 SCC 632

[2022] 9 S.C.R.

Astock witness. For all the aforesaid reasons the depositions of PW-10cannot be accepted.

V. Identification of Manoj by PW-8

96. The prosecution relied on the testimony of PW-8 AchyutmalTejwani to say that Manoj had obtained treatment from him. The witness,Bduring his deposition stated that he had studied from Science Collegein Pakistan. He admitted to not being licensed to practise medicine, bythe Medical Council of India; he also admitted that he did not hold anypermission to practise as doctor, but ran Kavita clinic. He identifiedManoj in court, and said that on 19.06.2011, Manoj had secured treatmentCfor an injury on his elbow, and another boy (who spoke in Sindhi)accompanied him.He proved Ex. P37, the slip issued by him, containingthe prescription for Manoj, which was seized on 25.06.2011 (Ex. P36)by the IO (PW-31), who deposed to it.97. This court is of the opinion that PW-8 is not reliable witness.Apart from the fact that he is admittedly an unqualified professional, andDan unlicensed one- at best quack, counsel for the appellants quitecorrectly point out that his previous links with the police cannot be ruledout, for the reason that he migrated, later than during Partition, fromPakistan. The probability of him practising his profession under the shadowof police patronage, for some kind of quid pro quo, i.e., being aEconvenient witness, leaves lurking suspicion. The police did not involvehim during the test identification parade; admittedly, Manoj was in facttaken to him during the investigation. In these circumstances, thetestimony of this witness is not credible. This circumstance is therefore,held not to be proved.

FVI.Test Identification Parade of the accused

98. The prosecution relied upon the testimonies of PW-10 andPW-18 (Pratap Kumar Agasiya, Naib Tehsildar). Both deposed that PW-10 had correctly identified Manoj and Rahul by specifically tapping theirheads.According to PW-18, both the accused were made to stand with10 other persons resembling them.The result of this identification memoGi.e., the test identification parade (“TIP”) proceedings were recorded asEx. P38, where Manoj and Rahul were identified by PW-10, and Ex.P40 where only Manoj was identified by PW-11 Raju Sen.Likewise,PW-18 deposed that in separate proceedingrecorded as Ex. P39, PW-10 had identified Neha from amongst five other girls who had similarHphysical features.

99. The main argument against the TIP proceedings was that itwas held after an inordinate delay. The appellants were arrested on22.06.2011 and remained in custody till 30.06.2011. It was urged that noattempt was made to involve magistrate, to have their TIPs either atthat time, or thereafter and that the TIP was held only on 14.07.2011.Ex. P38, the TIP relating to Rahul and Manoj, records the names of 10other men who the accused were made to stand with, anywhere as pertheir choice. Each person was covered with blanket, upto their neck.It records that no police personnel were present when the proceedingstook place, and the witness correctly identified the accused.

100. popular and widely used method of accused identification,by witness, in criminal trials, is the identification parade. TIP proceduresare used, where witnesses who claim to have seen the accused at, orabout the time of occurrence to identify such accused from the midst ofother individuals, who bear physical attributes similar to them, withoutany aid or other source. TIPs are meant to test witness veracity andtheir capability to identify unknown persons. TIPs should normally beconducted at the earliest possible time to eliminate the chance of accusedbeing shown to witnesses before the identification parade, which mightotherwise affect such witnesses’ memory. TIPs are conducted duringinvestigation; however, there is no provision of law enabling an accusedto claim it as matter of right, as held in Malkhan Singh v. State ofMP.[34]In Ramanathan v. State of Tamil Nadu[35]this court outlined theutility and weight of TIP. There is no hard and fast rule that delay orfailure in holding the TIP ipso facto renders the evidence inadmissibleor unacceptable; it however, affects the credibility and weight attachedto such identification, as held in Shyamlal Ghosh v. State of WestBengal[36].

101. This court has discussed earlier, with respect to credibilityPW-10’s testimony and why it cannot be taken at face value. Evenotherwise, the fact remains that he omitted to mention basic details aboutthe distance from between where he was, and where he saw the accused.Further, his account suggests that he apparently saw the accused,fleetingly. No attempt was made by the prosecution to draw sketch orto show the approximate distance from where this witness (who is vital

34 (2003) 5 SCC 746 (para 7).

35 (1978) 3 SCC 86 (para 18).

36 (2012) 7 SCC 646

Ato its case) observed the accused. Given these facts, and the delay(unexplained by the prosecution, which had by its account, wrapped upthe case by end of June 2011) to conduct the TIP after the accused’sarrest, renders the TIPsuspect. It cannot be said that the TIPs conductedand the subsequent dock identification, by PW-10 of the accused, areamong the circumstances proved beyond reasonable doubt.B

VII.Recovery of articles and their Test Identification

102. On the day of their arrest (22.06.2011), the accused madedisclosure statements and pointed out to the police the places where thearticles looted, or those relatable to the crime, were kept or hidden.CThese articles were seized on the same morning. In terms of Ex. P11,the articles recovered at Neha’s behest inter alia were, twobent goldenbangles approximately worth 50,000/-, golden pendant, three guriya,and part of mangalsutra with chain and guriya approximately worth 22,000, Megha’s ATM card issued by Bank of India. Similarly, Ex.P14 (recoveries made at Rahul’s behest) evidences two bent goldenDbangles having aeronuma design approximately worth 50,000/-,aguriya, part of mangalsutra with chain approximately worth 20,000/-. Lastly, Ex. P17 (recoveries made at Manoj’s behest) includedinter alia, two bent golden bangles having round design approximatelyworth 50,000/-, guriya, part of mangalsutra with chainEapproximately worth 20,000/-.

103. On the previous day (21.06.2011), PW-1 Niranjan Deshpandehad reported that some articles - 2 ATM cards (Megha and Ashlesha),Megha’s mobile, Ashlesha’s camera and specific jewellery items(belonging to Megha and Rohini), were missing from the premises.

104. On 09.07.2011, TIP of the articles was conducted, underthe supervision of PW-12 Zamil Khan, who was informed that theprocedure was to be conducted. He deposed that the TIP was carriedout at the Bharatiya Sangeet Kala Academy, Sector G, MIG colony,where policeman from MIG police Station reached with sealed packet.GOne Anil Soni also reached there with similar packet. He said that twopackets were opened and their contents were mixed together. ThereafterPW-1 reached the place; he observed the articles and identified them.PW-12 deposed as follows:

“In the identification, identifier Niranjay Deshpande hadidentified two gold bangles crumbled, one gold pendal (sicH

pendent), one broken Mangalsutra of chain and stud withGuriya, two gold Arrow like bangles, one broken goldMangalsutra, two gold designed bangles, one broken goldMangalsutra of chain and one Guriya.”

105. The witness also deposed that after the identification wascompleted, the jewellery was re-sealed and the jewellery items broughtby Anil Soni were taken away. He also identified the jewellery (whichhad been identified by PW-1 before him) in court. PW-1 deposed amongsimilar lines. The only difference between the two depositions is thatPW-1 stated that PW-7 was present (as matter of fact, he was not, asis evident from the testimony of PW-7). Apart from urging this to be aninconsistency, counsel for appellants also cast suspicion on the TIP ofthe jewellery, urging that neither Anil Soni nor the police constable whotook the sealed items to the venue of the TIP was examined. In thiscourt’s opinion, these omissions are minor, and do not shake the essentialcredibility of the proper identification of the jewellery. In fact, duringcross examination, PW-12 clearly deposed that besides him no one waspresent during the TIP of the articles and that after PW-1 completed theidentification, he drew the memo (Ex. P1) and kept the jewelleryseparately; the rest were taken away by Anil Soni.106. In this court’s opinion, joint reading of the testimonies ofPW-1 and PW-12, on the one hand, and the TIP proceedings on theother (Ex. P1, dated 09.07.2011) establishes that the prosecution provedthat the identification of the looted articles, were correctly identified byPW-1.The accused’s counsel had sought to urge that the articles werecommon pieces of jewellery, without any distinctive features and thatPW-1 could hardly know these- particularly,jewellery of his mother-in-law. If one keeps in mind that PW-1 had reported the loss of the articles,and listed them specifically, in his statement which was given to thepolice on 21.06.2011, their subsequent recovery, at the behest and pointingout of the accused, and their correct identification by PW-1 before PW-12, there cannot bedoubts on itscredibility. During cross examination,PW-1 was not questioned about how he could identify jewellery articlesof his wife, daughter and mother-in-law. There can be various reasons,why someone may be able to recollect or remember jewellery or othervaluables. There cannot be any general assumption that husband wouldnot be able to remember or recollect the personal articles of his wife, orthat wife cannot be expected to recollect and identify the personal

Aeffects of her husband. It all depends on the personality and individualtraits of human being, which uniquely differ from each other. It is possiblethat PW-1 had an eye for detail; it is equally possible that he was presentwhen the valuables were bought; or yet, it is further possible that theywere part of set, presented to the deceased individuals. The recollection,reporting and identification of the mangalsutra, is more specific. PW-1Bcould reasonably be assumed to be aware of that article, belonging toMegha, his wife. In these circumstances, the evidence relating to therecovery of items belonging to the deceased, recovered from theaccused’s premises at their behest, and their correct identificationbyPW-1 during TIPwere provedbeyond reasonable doubt, by theCprosecution.VIII. The circumstances relating to expert evidence regardingthe appellants’ fingerprints

107. PW-21Dr. Sudhir Sharma, Senior Scientific Officer in Sceneof Crime Mobile Unit, deposed that when he reached the crime sceneDon 19.06.2011 at 6:35 PM, the main door of the flat was open and notsealed. In his deposition he mentioned the shoe marks and other physicalevidence which existed, and also was cross examined about whetherthey were tampered with. Additionally, he stated that computer was inthe flat, which could have been seized, but he was unaware as to whetherEit was seized or not.

108. PW-24KK Dwivedi (the fingerprint expert) searched thecrime scene for possibility of lifting impressions of fingerprints. set offive fingerprints (i.e., Ex. P80, “chance fingerprints”) were lifted byhim, and signed by two witnesses (PW-5 and PW-9) as well as himself.FHe claimed that PW-17 Satyanarayan Patel (photographer of crimescene) had taken photographs of the spots, from where the prints werecollected. However, this is neither corroborated by the testimony of PW-17, nor in the exhibits on record.

109. Prints and were lifted from the inner back portion ofGdoor of bedroom adjoining the bathroom on the first floor; Prints andD were lifted from the outer portion of door of bedroom adjoining thekitchen; and Print was lifted from the inner portion of the same door.Upon examination, A, B, D, and were found suitable for comparison.

110. The fingerprints of the deceased [Ex. P81 (Megha), Ex. P82(Rohini) and Ex. P83 (Ashlesha)] were lifted by constable Dinesh onH

20.06.2011. Constable Dinesh, however, was not examined by theprosecution in the course of trial. The fingerprints of the three appellants[Ex. P41 (Rahul), Ex. P42 (Manoj), and Ex. P43 (Neha)] were obtainedby PW-13 constable Vijay Singh on 24.06.2011 who deposed in chiefexamination that he took the signatures of the three accused persons(who were present in court and identified by him), on their respectivefingerprint slips, and later sent them to the SSP Office. In cross-examination he deposed to being trained by the fingerprint departmentand that he was competent to take prints. He observed an injury/cutcaused by knife, on the ring finger of Rahul’s right hand, and no otherinjuries on the fingers of the three accused. It also mentioned that he didnot obtain any written consent from the accused.

111. The report of the fingerprint expert (Ex. P84) dated 11.07.2011by PW-24 K.K. Trivedi, coupled with his testimony, forms the crux ofthe prosecution case regarding fingerprints. On 27.06.2011, fingerprintsof the accused were received and compared with the chance fingerprintsby PW-24, who used the 8-point method and found that prints and Bmatched with the index and middle finger respectively of Rahul’s righthand; fingerprint matched with the middle finger of Manoj’s righthand, and Print matched with Neha’s right thumb. The fingerprintreport was sent to the Director, Finger Print Bureau Bhopal by PW-24on 06.07.2011 which was verified by the former vide letter dated11.07.2011. The prosecution relied on these findings to corroborate thepresence of the appellants at the crime scene.

112. Interestingly, PW-24 KK Dwivedi in his chief examinationhas stated that letter no. AC Branch/E/80/11 dated 20.06.2011 was sentby Finger Print Branch Indore to MIG Police Station for comparison ofchance fingerprints with the fingerprints of family members/suspects.However, his cross-examination reveals no such letter was on the record.The cross-examination also shows that he did not obtain fingerprints ofany other person (including family members of the deceased) or articlethat was present at the place of the incident, for the purpose of comparison- point which has been urged by the counsels on behalf of the appellants,laboriously. He also deposed that there was neither mark of the wholepalm on the door, nor bloody fingerprints on the door; and the otherfingerprints available on the door were unfit for lifting.

113. The appellants’ counsel questioned the circumstances relatingto the fingerprint evidence, on grounds such as (i) absence of any

Aelimination print; (ii) irregularity in obtaining the appellant’s fingerprints;(iii) non-examination of constable Dinesh (who collected the fingerprintsof the deceased for the process of elimination) by the prosecution; (iv)the absence of covering letter, along with the fingerprint expert’s report,when produced in court; and (v) the fingerprints of the appellants werenot procured in accordance with law, as there was no compliance withBIdentification of Prisoners Act, 1920.

114. This court would take up the last argument, at the outset. InSonvir v. State (NCT) of Delhi[37], it was held that the provisions of theIdentification of Prisoners Act, 1920, were not mandatory, butratherdirectory, and that they only affirm the bona fides of the sample-Ctaking (of the fingerprints of an accused) and eliminate the possibility ofevidence fabrication. This court however, made it clear that not followingor complying with the provisions of the Act, would not per se vitiate theevidence, in given case. This was again affirmed in Ashish Jain &Ors. v. Makrand Singh[38].D

115. In the present case, PW-24’s deposition corroborates thelifting of the fingerprints by constable Dinesh in his presence. Therefore,the non-examination of constable Dinesh is not fatal to the prosecution’scase regarding fingerprints. As far as the integrity of the crime scene isconcerned, PW-21 deposed that though the door to the flat was open,Ewhen he reached there, the police were standing outside and it was notpossible that the crime scene was contaminated. The IO (PW-31)admitted that the crime scene was not sealed when the investigationtook place on the evening of 19.06.2011; however, he clarified that theforensic department personnel who reached the site before him hadsecured the place. Given this consistent evidence, this court is of opinionFthat the possibility of members of the public or unauthorized persons,contaminating the crime scene, so soon after the incident was reported,is remote.

116. Fingerprints collected at crime scene from all personnelwho were at the scene and who might have inadvertently touched physicalGevidence, are known as ‘elimination prints’. In the present case,elimination prints of the deceased were obtained on 20.06.2021; theywere part of the record. The record would show that PW-3, PW-5, PW-

37 (2018) 8 SCC 24H38 (2019) 3 SCC 770

9 were present at the crime scene, but admittedly their fingerprints werenot obtained. It appears from the testimony of PW-9 that initially, thewitnesses were asked to be outside, but later, asked to join theproceedings, to witness the seizures made. All the three witnesses,consistently deposed regarding fingerprint experts’visit to the site, theuse of powder on the surfaces and lifting of fingerprints. PW-5, in crossexamination said that his fingerprint was not obtained. During hearing,counsel for the appellants had repeatedly emphasized that eliminationprints were not taken from others present at the crime scene; they alsohighlighted that fingerprint were not lifted from the knives, pistol andornaments seized from the accused. In the opinion of this court, nothingmaterial turns on this aspect. In recent judgment -which the appellantsrelied on-, i.e. Hari Om @ Hero v State of UP[39] this court acquitted theaccused, on the ground that the fingerprint expert’s opinion, even ifaccepted, would could not have been the sole basis of conviction. Whatis important is whether the crime scene was secured, and whether thelifting of prints was witnessed. On both counts, the prosecution evidenceis credible and worthy of acceptance. These are also corroborated bythe testimony of PW-21, the Senior Scientific Officer, and the crimescene report dated 20.06.2021 (Ex. P77) tendered by him.117. The other aspect, relating to fingerprint evidence is that thefingerprint report (Ex. P84) was prepared on 11.07.2011.Ex. P85 to Ex.P92 are photographs of the fingerprints lifted (these were annexed tothe fingerprint report Ex. P84). The fingerprint report was enclosed witha letter (Ex. P93). Given that the expert deposed to lifting the prints,which were corroborated by the three witnesses (PW-3, PW-5 and PW-9) apart from the IO, the credibility of this circumstance, i.e., the liftingof the prints from the crime scene, their match with the sample prints ofthe accused, and the expert’s testimony stand proved. The appellant’sarguments questioning the credibility of this part, on the ground of delayin the report, the prints being chance prints, lack of elimination prints, orthe crime scene not being shown to have been secured, etc, areinsubstantial and are rejected.

IX. Circumstances relating to injuries on the deceased

118. The post-mortem report (Ex. P44) indicates the extent ofinjuries on the bodies of the deceased. Megha (aged 46) had firearm

Ainjury on the forehead and 4 deep stab wounds (abdomen, shoulder andchest). Rohini (aged 76) had stab wounds across her body - rangingfrom her fingers and hands, arms, and numerous injuries on her abdomenand chest which had pierced her vital organs. Similarly, Ashlesha (aged22) received numerous stab injuries across her body – including, herfingers, hands and forearms, hip, neck, abdomen and chest which piercedBher vital organs, back, and many superficial stab wounds on her thighs.

119. The expert opinion of PW-15Dr. Thakur (the doctorwhoconducted the post-mortem) was that the cause of death of Megha, wasshock caused by firearm injuries and haemorrhage. Rohini and Ashlesha’sdeath was due to shock and haemorrhage from their numerous stabCinjuries. All three deaths were homicidal in nature. This witnessconfirmed- both in his opinion and his testimony that all injuries on thethree deceased, except the gunshot injury (No. 1- on the body of Megha)could have been caused by the two knives, seized from the possessionof Rahul and Manoj, respectively (Articles and B, forwarded to himDfor opinion under query Ex. P47).

X. The Ballistic report

A. The recovery of bullets from the crime scene and thedeceased Megha

E120. Three cartridges (one live, and two shells) were seized bythe IO (PW-31) on 19.06.2011 from the crime scene. He prepared thesite map (Ex. P25 and Ex. P-26) and recovery memo (Ex. P27) witnessedby PW-5 (landlord Vishal Pandey) and PW-9 (one Mahesh Parmar,neighbour of informant Vishal Pandey). The IO deposed to preparingthe site map witnessed by PW-5 and to seizing one empty, spent cartridgeF(lying on the floor near the body of Ashlesha), one empty, spent cartridgefrom near bed, and one unused, live cartridge from near the body (head)of Rohini. He also deposed that all the cartridges had the inscription‘K.F. 7.65’ on them. PW-5 deposed that the spot map was prepared infront of him and similarly deposed as to the location of two cartridges –Gfound under the bed and near Rohini’s body. However, the appellantsdid not cross-examine PW-5 about the number of bullets seized, i.e., onthe third bullet. PW-9 also deposed on similar lines.

121. PW-15 (doctor conducting the post-mortem examination)deposed that on 20.06.2011, PW-33 S.S Kujur brought the dead body ofMegha Deshpande with cover letter at 11:00 AM; and the post-mortemH

began at around 11:45 AM. Post-mortem was conducted along with Dr.Prashant Rajput and Dr. N. Fadse (both were not examined). On post-mortem of deceased Megha’s body, bullet was recovered. Theextraction of bullet is described as wound no. 1 and the bullet wasrecovered from anterior of cranium. PW-15 deposed that all the articleswere sealed, labelled and handed over to PW-33. The post-mortem report(Ex. P44) was prepared and taken from MY hospital to the police stationby PW-33, and seizure memo (Ex. P127) was prepared by PW-34Mahesh Prasad Yadav. The seizure report was witnessed by HeadConstable Shambhunath and Constable Ramjan, both of whom were notexamined. PW-33’s deposition corroborated the facts relating to himand his involvement.

122. Further, PW-15 in his cross-examination stated that theweapon was shot in contact with the body and that he could not statewhich weapon caused injuries to Megha. In cross-examination, PW-33admitted that no specimen seal was obtained by him from the doctor andno receipt was given to the doctor upon receiving the said articles. Further,he stated that on 19.06.2011 he took the bodies to the hospital by policevehicle after 6:00 PM. He deposed to going home after locking themortuary (as it was night time) and leaving the keys in the hospital. PW-34 Mahesh Prasad Yadav deposed about preparing of seizure memo(Ex. P127) on 20.06.2011 upon presentation of the articles by PW-33;and in cross-examination he admitted to not sending copy of seizurememo to the hospital, not filling column no. 10 regarding description ofthe seized items, the sample seal not being marked, and that he did notmark the number of articles on the items mentioned in the seizure memo.He further deposed that he did not open the packets to see what wasinside and also did not receive the post-mortem report himself, but onlymade roznamchaentry regarding seizure of items. The joint reading ofthe testimonies of PW-15, PW-33 and PW-34 establishes that bulletwas extracted by the doctor (PW-15), and seizure memo was preparedin connection; the articles seized were then sealed (although no markwas placed on the seal).

B. Recovery of bullet from Rahul and facts relating to it

123. Parallel to the recovery of the cartridges from the crimescene, the prosecution story was that the accused Rahul suffered abullet injury during the incident. The prosecution alleged that Rahul wentto Annapurna police station and reported false case of shooting. As to

Athis, PW-30 R.S. Makwana, (A.S.I Annapurna PS) deposed that on19.06.2011 he saw Rahul @ Govind coming to the police station in anautorickshaw alleging that someone shot him in the foot and that he wasgoing to the District Hospital for treatment. He gave the information toPW-29 Gauri Shankar Chadar. PW-30 along with Constable Dinesh (whowas not examined) went to the District Hospital. dehatinalsi wasBprepared (Ex. P103). Later PW-30 went back to the police station toregister the FIR (Ex. P107). PW-26 Dr Mukesh Bachawat (MedicalOfficer in the Dist. Hospital) examined Rahul at around 22:40 hrs, andprepared medical report (Ex. P97), before referring Rahul to MY Hospital.Constable Dinesh accompanied Rahul to MY Hospital for his treatment.CDuring the early hours of 20.06.2011, PW-32 Dr Nilesh Guru examinedRahul and removed the bullet from his right foot. It was deposited in theMLC Section of the hospital (Ex. P113). PW-30 stated that he took thesealed packet from MY Hospital on 23.06.2011 which contained thebullet extracted from Rahul @ Govind’s foot. Shivraj Singh Raghuwanshi

(not examined) prepared the seizure memo which was exhibited as Ex.DP108 (Article Z-7) and PW-22 witnessed it. In the cross examination,PW-30 was questioned about the condition of the bullet, whether it hadtraces of blood, etc.

124. The appellants argued that the prosecution failed to establishthat the bullet in fact was extracted from Rahul’s right foot and it wasEthe one sent to the ballistic expert. The case made out was that the boyexamined by PW-26 and PW-32 was not Rahul at all. However, on thatscore, there cannot be any doubt because PW-29 G.S. Chadar, whorecorded the de hatinalsi identified Rahul in the court as Govind, whohad reported that he was shot on the foot by an unknown person andFreported the matter to PS Annapurna. Furthermore, the signatures ofthe complainant on the de hatinalsi (Ex-P103) are identical to thesignatures of the appellant Rahul in his statement under Section 313CrPC. The doubt sought to be raised with respect to the manner ofseizure of bullet in this Court’s opinion, is not merited. The identification

of Rahul by PW-29, the deposition of PW-30 and PW-31 (IO) show thatGthe doctor who extracted the bullet initially kept it in safe custody withthe hospital itself in the MLC Section, which was later retrieved by PW-30 on 23.06.2011 and the seizure made on the same day in the MIGPolice Station. PW-22 Bharat Singh Thakur was in fact witness to theseizure memo (Ex. P78, seized as Ex. P108 by PS MIG Police Station).HThus, an overall reading of the testimonies and articles seized, in the

opinion of the Court, lends credence to the fact that Rahul suffered abullet injury on 19.06.2011, and proves the circumstances surrounding it,as presented by the prosecution.

125. The Ballistics Report (Ex. P52) was prepared by PW-16Bheem Bahadur, Head Constable at DRP Line, Indore. It described thenature of the firearm seized, and cartridges recovered. The ExaminationReport prepared by the State Forensic Science Laboratory (Ex. 120)stated that on chemical examination of blood found on piece of bandage(swab of gunshot wound of deceased), it was not found positive fornitrate, copper or lead. However, the report stated that two bullets werecompatible to the certified bulled of 7.65 mm calibre cartridge, and BulletTB-A1 were found similar. Three pieces of skin, found copper positive.Importantly, according to the report, two bullets (EB2 and EB1) recoveredfrom the body of Megha, the deceased, and Rahul’s right foot respectively,were fired from pistol Ex. A1. The report also stated that the bullet firedat the right shoe (seized on 22.06.2011 under seizure memo Ex. P-75,which was proved by PW-20) was caused by copper jacketed bullet.Ex. P120, which was exhibited by the IO (PW-31), also listed inter alia,several articles such as Article A-5 (containing two fired empty shells of7.65 mm calibre cartridge which were marked as EC-l & EC-2); ArticleA-6 (containing live 7.65 mm calibre pistol cartridge which was markedas LR-l); Article A-10 (containing blood-stained Vicks bottle); ArticleB-5 (containing three small pieces of skin jointly marked SK-l); ArticleB-6 (containing one piece of bandage cloth with substance thereon);Article F-1 (a country made pistol A-1); Article F-6, (containing oneright leg shoe) and Article F-7 (a bullet marked as EB-1). The BallisticsReport, dated 14.07.2011, stated that PW-16 Bhim Bahadur, ballisticsexpert test fired from the pistol received from the MIG Police in sealedpacket. The ballistic report stated inter alia, that

“These are empty shells of used cartridge of 7.65 mm caliberpistol and on whose head stamp ‘’KF’’ is marked. They havemark of firing pin/ breach face. On comparison throughmicroscope both are found alike as well as like test firecartridge TC-Al. The photo-micrograph has been taken foralike situation of Ex. ECl&TC-Al wherein the points ofsimilarity have been marked.”

PW-16 who prepared the report, stated in his deposition that he:

524SUPREME COURT REPORTS

A“..had checked operating firing pin, magazine catch and thesewere found in serviceable condition. fire opened by, thiscountry-made pistol could cause loss of life for the people.”

126. The IO deposed that all seized articles were sent for chemicaland ballistic examination on 13.07.2011 by letter Ex. P115, to which theBacknowledgement receipt was Ex. P116 to P118. The ballistic expertPW-16 was not cross examined. There is nothing on record that discreditsthe ballistics examination or conclusions drawn by the expert PW-16,and this circumstance is therefore, proved.

XI. DNA Evidence and the DNA expert’s reportC

127. sample of blood found on the floor of the incident wherethe body of deceased Megha was lying, was collected on cotton swab,marked as A-1 and put in paper envelope. Similarly, sample of bloodfound near deceased Rohini, was marked as A-2 and sample of bloodnear deceased Ashlesha, was marked as A-3. sample of plain cottonDwas also placed in paper envelope and marked as A-4, as per seizurememo (Ex.P27) prepared by the IO at the crime scene.The seizure ofthese samples/articles (among others) from the crime scene iscorroborated by the testimony of PW-5 and PW-9 who are also witnessesto Ex. P27. PW-17 Satyanarayan Patel (crime scene photographer) hadphotographed the crime scene (Ex. P61 to Ex. P65). These photos showEblood stains as well as the position, and direction of the bodies.The clothes(B1, C1, D1), vaginal swabs (B2, C2, D2) and pubic hairs (B3, C3, D3)were also taken from each of the deceased -Megha, Rohini and Ashlesha,respectively.

128. The clothes from which DNA material was obtained fromFthe accused, were recovered pursuant to disclosure statements (Ex.P28, Ex. P31, and Ex. P34) made on 23.06.2011. Seizures of the relevantclothing articles (Ex. P29, Ex. P32, and Ex. P35) were drawn in thepresence of PW-7 Sandeep Narulkar and Prakash Ichke (who was notexamined by the prosecution), which as discussed at length earlier -throws some doubt on the recoveries made on 23.06.2011. In addition toGtheir clothes, the prosecution submitted that DNA material was alsoextracted from the knife seized from Manoj on 22.06.2011 (Ex. P14),and the iron knife from Rahul on 23.06.2011 (Ex. P29).

129. The deposition of PW-35 Dr. Pankaj Srivastava, ScientificOfficer, DNA fingerprint unit FSL Sagar, read with the DNA ReportH

dated 10.08.2011 (Ex. P122) prepared by him, provide details of theDNA analysis.This witness stated that the department received 19exhibits concerning this case on 14.07.2011, in sealed condition, whichas per his cross, he examined on 18.07.2011. The expert’s report revealsthat DNA was extracted through the Automated DNA Extraction System12 GC and Organic extraction. 16 desired genetic markers were takenfrom DNA to be tested by Amplification Multiple PCR Technique. Thus,genotyping profile was obtained along with Automated DNA sequencerof amplified DNA, AmfF/STR Identifier kit, AmpF/STR Y Filer kit. Theanalysis of the results was done by gene mapping software v3.5. PW-35clarified that ‘physical substance’ mentioned in the report is meant to beblood.130. All of the articles obtained in connection to Megha (cottonswab of blood near her body A1, clothes B1, vaginal smear slide B2,bullet seized from her body B4) were compared and uniform femaleDNA profile was found. Similarly, uniform female DNA profile wasfound in the case of articles in connection to Rohini (A2, C1, C2) andAshlesha (A3, D1, D3). These DNA profiles were then compared withthe DNA material extracted from the clothes of the three accused, andthe two knives recovered from Rahul and Manoj, which form part ofthe DNA report. The conclusions of the DNA matches and consequentopinion of PW-35 in the report, are summarised in the below table:

131. DNA material found on the bloodstained bedsheet seizedfrom the scene of the crime (Ex. A9) indicated presence of mixed DNAprofile of the deceased, i.e. DNA material of more than one individual.There is no mention of DNA material on the articles matching Rohini’sDNA profile. As is evident from the above table, the DNA material

Awhich the prosecution relies on, is that of the victims which according tothe prosecution, was found on articles recovered from the possession ofthe accused. It is not case of having found DNA material of the accused,at the crime scene or on the bodies of the deceased. Hence, the fingernailclippings (Ex. P18, P19 and P20) taken from the accused at the time ofarrest, seem to have not been considered/used.B

132. During cross-examination what was put to PW-35, waswhether: (a) the time period between seizure/incident and examinationwould have any bearing on the DNA analysis, (b) there was cut markin Manoj’s clothes (G3), (c) the articles were in sealed condition, (d) theclothes had to be kept in particular condition, and if blood could mixCwhen clothes kept together - the answers to which are satisfactory.However, the typographical error of mentioning ID 3074 as ID 3078raises concern and was pressed upon by counsel for the appellants.

133. Before this court, the appellants have raised concernsregarding the unexplained delay in sending the articles seized onD23.06.2011 only 20 days later on 13.07.2011 (Ex. P115) and the conditionin which they were preserved, the lack of statistical analysis, and thatthe observation sheet on which PW-35 deposed to have made notingson, was not placed on the record. Serologist Reports prepared by Dr.M.P. Singh (Ex. P123 and P124) are also on the record which revealEthat blood was present on one bullet (B4), but blood quantitywas notenough to run tests. This naturally raises question on whether it waspossible to extract DNA, at all. The other articles mentioned in theserologist’s report were A10 (Vicks bottle), F2 (Rahul’s left shoe), F3(Rahul’s nails), F6 (Rahul’s right shoe), F7 (bullet recovered from Rahul’sright foot), G2 (Manoj’s nails), G4 (Manoj’s shoes), H1 (Neha’s nails)Fand H3 (Neha’s sandals). However, the blood stains were too disintegratedor the quantity of blood on the articles, was not sufficient to runclassification tests.

134. During the hearing, an article published by the CentralForensic Science Laboratory, Kolkata[40] was relied upon. The relevantGextracts of the article are reproduced below:

“Deoxyribonucleic acid (DNA} is genetic material present inthe nuclei of cells of living organisms. An average human

40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory,HDirectorate of Forensic Science, Kolkata (2007).

body is composed of about 100 trillion of cells. DNA is presentin the nucleus of cell as double helix, supercoiled to formchromosomes along with Intercalated proteins. Twenty- threepairs of chromosomes present In each nucleated cells and anindividual Inherits 23 chromosomes from mother and 23 fromfather transmitted through the ova and sperm respectively. Atthe time of each cell division, chromosomes replicate and oneset goes to each daughter cell. All Information about Internalorganisation, physical characteristics, and physiologicalfunctions of the body is encoded in DNA molecules in alanguage (sequence) of alphabets of four nucleotides orbases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine(C) along with sugar- phosphate backbone. human haploidcell contains 3 billion bases approx. All cells of the body haveexactly same DNA but it varies from individual to Individualin the sequence of nucleotides. Mitochondrial DNA (mtDNA}found in large number of copies in the mitochondria is circular,double stranded, 16,569 base pair in length and showsmaternal inheritance. It is particularly useful in the study ofpeople related through the maternal line. Also being in largenumber of copies than nuclear DNA, it can be used in theanalysis of degraded samples. Similarly, the Y chromosomeshows paternal inheritance and is employed to trace the malelineage and resolve DNA from males in sexual assault mixtures.

Only 0.1 % of DNA (about 3 million bases} differs from oneperson to another. Forensic DNA Scientists analyse only fewvariable regions to generate DNA profile of an individualto compare with biological clue materials or control samples.

…………………………………………

DNA Profiling Methodology

DNA profile is generated from the body fluids, stains, andother biological specimen recovered from evidence and theresults are compared with the results obtained from referencesamples. Thus, link among victim(s) and/or suspect(s) withone another or with crime scene can be established. DNAProfiling Is complex process of analyses of some highlyvariable regions of DNA. The variable areas of DNA aretermed Genetic Markers. The current genetic markers of

ABC

DEF

Achoice for forensic purposes are Short Tandem Repeats (STRs).Analysis of set of 15 STRs employing Automated DNASequencer gives DNA Profile unique to an Individual (exceptmonozygotic twin). Similarly, STRs present on Y chromosome(Y- STR) can also be used in sexual assault cases ordetermining paternal lineage. In cases of sexual assaults, Y-BSTRs are helpful in detection of male profile even in thepresence of high level of female portion or in case ofazoo11permic or vasectomized” male. Cases In which DNAhad undergone

environmental stress and biochemical degradation, min lSTRsCcan be used for over routine STR because of shorter ampliconsize.

DNA Profiling is complicated process and each sequentialstep involved in generating profile can vary depending onthe facilities available In the laboratory. The analysisDprinciples, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I &II (HVR I & II) are detected by sequencing and comparingresults with control samples:….

FStatistical Analysis

Atypical DNA case involves comparison of evidence samples,such as semen from rape, and known or reference samples,such as blood sample from suspect. Generally, there arethree possible outcomes of profile comparison:

1) Match: If the DNA profiles obtained from the two samplesare indistinguishable, they are said to have matched.

2) Exclusion: If the comparison of profiles shows differences,it can only be explained by the two samples originating fromdifferent sources.

3) Inconclusive: The data does not support conclusion Ofthe three possible outcomes, only the “match” between samplesneeds to be supported by statistical calculation. Statisticsattempt to provide meaning to the match. The match statisticsare usually provided as an estimate of the Random MatchProbability (RMP) or in other words, the frequency of theparticular DNA profile in population.

In case of paternity/maternity testing, exclusion at more thantwo loci is considered exclusion. An allowance of 1 or 2 locipossible mutations should be taken Into consideration whilereporting match. Paternity of Maternity Indices andLikelihood Ratios are calculated further to support the match.

Collection and Preservation of Evidence

If DNA evidence is not properly documented, collected,packaged, and preserved, It will not meet the legal andscientific requirements for admissibility in. court of law.Because extremely small samples of DNA can be used asevidence, greater attention to contamination issues isnecessary while locating, collecting, and preserving DNAevidence can be contaminated when DNA from another sourcegets mixed with DNA relevant to the case. This can happenwhen someone sneezes or coughs over the evidence or toucheshis/her mouth, nose, or other part of the face and then touchesarea that may contain the DNA to be tested. The exhibits havingbiological specimen, which can establish link among victim(s),suspect(s), scene of crime for solving the case should beIdentified, preserved, packed and sent for DNA Profiling.”

135. In anearlier judgment, R v Dohoney & Adams[41 ]the UKCourt of Appeal laid down the following guidelines concerning theprocedure for introducing DNA evidence in trials: (1) the scientist shouldadduce the evidence of the DNA comparisons together with hiscalculations of the random occurrence ratio; (2) whenever suchevidence is to be adduced, the Crown (prosecution) should serve uponthe defence details as to how the calculations have been carried out,which are sufficient for the defence to scrutinise the basis of thecalculations; (3) the Forensic Science Service should make available

41 1997 (1) Crl App Rep 369

Ato defence expert, if requested, the databases upon which thecalculations have been based.

136. The Law Commission of India in its report[42], observed asfollows:

“DNA evidence involves comparison between genetic materialBthought to come from the person whose identity is in issueand sample of genetic material from known person. If thesamples do not ‘match’, then this will prove lack of identitybetween the known person and the person from whom theunknown sample originated. If the samples match, that doesCnot mean the identity is conclusively proved. Rather, an expertwill be able to derive from database of DNA samples, anapproximate number reflecting how often similar DNA“profile” or “fingerprint” is found. It may be, for example,that the relevant profile is found in 1 person in every 100,000:This is described as the ‘random occurrence ratio’ (PhipsonD1999).Thus, DNA may be more useful for purposes of investigationbut not for raising any presumption of identity in court oflaw.”

E137. In Dharam Deo Yadav v. State of UP[43 ]this court discussedthe reliability of DNA evidence in criminal trial, and held as follows:

“The DNA stands for deoxyribonucleic acid, which is thebiological blueprint of every life. DNA is made-up of doublestandard structure consisting of deoxyribose sugar andFphosphate backbone, cross-linked with two types of nucleicacids referred to as adenine and guanine, purines and thymineand cytosine pyrimidines…..DNA usually can be obtained fromany biological material such as blood, semen, saliva, hair,skin, bones, etc. The question as to whether DNA tests arevirtually infallible may be moot question, but the fact remainsGthat such test has come to stay and is being used extensivelyin the investigation of crimes and the Court often accepts theviews of the experts, especially when cases rest on

42 185th Report, on Review of the Indian Evidence Act, 200343 (2015) 5 SCC 509H

circumstantial evidence. More than half century, samplesof human DNA began to be used in the criminal justice system.Of course, debate lingers over the safeguards that should berequired in testing samples and in presenting the evidence inCourt. DNA profile, however, is consistently held to be validand reliable, but of course, it depends on the quality controland quality assurance procedures in the laboratory.”

138. The US Supreme Court, in District Attorney’s Office forthe Third Judicial District v. Osborne,[44] dealt with post-convictionclaim to access evidence, at the behest of the convict, who wished toprove his innocence, through new DNA techniques. It was observed, inthe context of the facts, that

“Modern DNA testing can provide powerful new evidenceunlike anything known before. Since its first use in criminalinvestigations in the mid-1980s, there have been several majoradvances in DNA technology, culminating in STR technology.It is now often possible to determine whether biologicaltissue matches suspect with near certainty. While of coursemany criminal trials proceed without any forensic and scientifictesting at all, there is no technology comparable to DNAtesting for matching tissues when such evidence is at issue.DNA testing has exonerated wrongly convicted people, andhas confirmed the convictions of many others.”

139. Several decisions of this court- Pantangi Balarama VenkataGanesh v. State of Andhra Pradesh[45], Santosh Kumar Singh v. StateThrough CBI[46], Inspector of Police, Tamil Nadu v. John David[47],Krishan Kumar Malik v. State of Haryana[48], Surendra Koli v. Stateof Uttar Pradesh &Ors[49], and Sandeep v. State of Uttar Pradesh[50],Rajkumar v. State of Madhya Pradesh[51] and Mukesh & Ors. v. Statefor NCT of Delhi & Ors.[52] have dealt with the increasing importance

44 557 U.S. 52 (2009)45 (2009) 14 SCC 60746 (2010) 9 SCC 74747 (2011) 5 SCC 50948 (2011) 7 SCC 13049 (2011) 4 SCC 8050 (2012) 6 SCC 10751 (2014) 5 SCC 35352 (2017) 6 SCC 1

DEF

Aof DNA evidence. This court has also emphasized the need for assuringquality control, about the samples, as well as the technique for testing- inAnil v. State of Maharashtra[53]

“7. Deoxyribonucleic acid, or DNA, is molecule that encodesthe genetic information in all living organisms. DNA genotypeBcan be obtained from any biological material such as bone,blood, semen, saliva, hair, skin, etc. Now, for several years,DNA profile has also shown tremendous impact on forensicinvestigation. Generally, when DNA profile of sample foundat the scene of crime matches with DNA profile of the suspect,it can generally be concluded that both samples have the sameCbiological origin. DNA profile is valid and reliable, butvariance in particular result depends on the quality controland quality procedure in the laboratory.”

140. This court, in one of its recent decisions –Pattu Rajanv. TheState of Tamil Nadu[54], considered the value and weight to be attachedDto DNA report:

“33. Like all other opinion evidence, the probative valueaccorded to DNA evidence also varies from case to case,depending on facts and circumstances and the weightaccorded to other evidence on record, whether contrary orEcorroborative. This is all the more important to remember, giventhat even though the accuracy of DNA evidence may beincreasing with the advancement of science and technologywith every passing day, thereby making it more and morereliable, we have not yet reached juncture where it may besaid to be infallible. Thus, it cannot be said that the absenceFof DNA evidence would lead to an adverse inference againsta party, especially in the presence of other cogent and reliableevidence on record in favour of such party.”

141. This court, therefore, has relied on DNA reports, in the past,where the guilt of an accused was sought to be established. Notably, theGreliance, was to corroborate. This court highlighted the need to ensurequality in the testing and eliminate the possibility of contamination ofevidence; it also held that being an opinion, the probative value of suchevidence has to vary from case to case.

53 (2014) 4 SCC 69H54 (2019) 4 SCC 771

142. In the present case, what is apparent, is that PW-35 hasvirtually echoed the DNA analysis in his chief examination, and not chosento elaborate on the random occurrence ratio, i.e., the probability of theaccused’s samples matching with those allegedly found at the crimescene. This court has already discussed whether the recoveries of23.06.2011 pursuant to disclosures made that day can be accepted andheld that they are suspect and need to be discarded. This leaves thereport, to the extent it says that samples lifted from recoveries made atthe crime scene matched what was seized on 22.06.2011 (knives, andother articles), to be inconclusive.

143. It is noteworthy that seizure Memo Ex-27, in terms of whichArticle A-9 (ID 3063) is said to have been seized, does not record thatas matter of fact, bed-sheet was seized.If one keeps in mind thatsource H2 (ID 3078) in relation to Neha was seized on 23.04.2011, andfrom an open area, the likelihood of its contamination- even if arguendothe genuineness of its recovery might have been accepted- carried somedegree of probability. For these reasons, it is held that the DNA report inthe present case cannot have clinching, or high degree of probativevalue.

XII.Evidence relating to footprints

144. The Inspection Report (Ex. P77) prepared by PW-21 Dr.Sudhir Sharma described the scene of the crime. It mentioned that threetypes of blooded partialshoe prints were found in the following areas:(a)near the table at the crime scene; (b) in the pool of blood near thebody of Ashlesha; and (c) on the floor near the almirahs.

145. PW-21 did not, in his cross-examination remember the numberof partial shoe prints found at the incident (which he later says were at2-3 places), but states that there were three kinds of prints. He alsomentioned that no dust was present, and therefore barefoot prints werenot possible. In his chief examination, PW-21 mentioned that at hisinstruction, PW-17 (crime scene photographer) took scaled photographsof the blood-smeared partial shoe prints found at the place of the incident(which are Ex. P66 to Ex. P74). This is not mentioned in the chiefexaminationof PW-17; who only later in his cross, states that he hadtaken 8x12 scaled photos of the footprints and locations with blood stains,which were Ex. P66 to Ex. P74.

A146. As already elaborated earlier, Manoj’s shoes were seized athis behest (Ex. P31, Ex. P32) and sandals from Neha based on herdisclosure (Ex. P34, Ex. P35) on 23.06.2011. Rahul’s right shoe wasseized by Annapurna PS on 22.06.2011 which is corroborated by thetestimony of PW-20 Harbhajan Singh (independent witness), who statedthat Abhay Tiwari (not examined) had spotted the blood-stained shoe inBhis garden and reported it to the police, and that both of them werewitnesses to the seizure memo (Ex. P75). The left shoe was seized (Ex.P21) pursuant to disclosure made by Rahul to the IO.

147. In furtherance of Ex. P115 letter dated 13.07.2011 sent bythe IO to the State Forensic Laboratory, Examination Report of shoeCprints dated 13.09.2011 was prepared. This report stated that, the exhibitswere received by the Ballistics Branch on 02.08.2011 in sealed condition.For comparative examination, sample prints of soles of shoes of Ex. F2,F6, and G4 and sandals of Ex. H3 were made (photographs 10, 11, 12,13 and 14). The shoeprints found were merely mentioned together – it isDunclear as to which photograph (#10, 11, etc.) is the sample of whichshoe (F2, F5, etc.).

148. This court is of the opinion that much weight cannot beattached to the footprint evidence in this case. The report explicitly notesthat shoeprints are incomplete and unclear, and that specific and clearEopinion could not be given. Yet, the expert proceeded to give his opinionabout the matching of the prints. In State of Bihar v Kapil Singh[55] thisCourt had held that evidence of an expert relating to presence of afootprint, at the best is of weak nature. This view was also shared byMohd. Aman v. State of Rajasthan[56]and Balbir Singh v State ofPunjab[57]. The prosecution, in the opinion of this court, has not provedFthis circumstance.

Principles applicable to appreciation of evidence in casesinvolving circumstantial evidence

149. In one of its earlier decisions this court had in Hanumant v.GThe State of Madhya Pradesh[58]indicated that the correct approach ofcourts trying criminal cases involving circumstantial evidence should be

55 1968 (3) SCR 31056 (1997) 10 SCC 4457 1996 (6) SCALE 72H58 AIR 1953 SC 343

that the circumstances alleged, be fully established; all the facts soestablished should be consistent only with hypothesis of the guilt of theaccused; circumstances should be conclusive and of such tendency thatthey should be such as to exclude every hypothesis but the one proposedto be proved.This view was followed later in Tufail v. State of UttarPradesh[59] and Ram Gopal v. State of Maharashtra[60]. All these andother decisions were revisited in the three-judge bench decision in SharadBirdi Chand Sarda v. State of Maharashtra[61]and the court enunciateda set of principles that every court trying criminal cases entirely basedon circumstantial evidence had to follow.

150. The conclusions recorded by this court in Sarda were listedin Para 152 (which were characterised in Para 153 as “five goldenprinciples”). They are extracted below:

“(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established.It may be noted herethat this Court indicated that the circumstances concerned‘must or should’ and not ‘may be’ established. There is notonly grammatical but legal distinction between ‘may beproved’ and ‘must be or should be proved’ as was held by thisCourt in Shivaji Sahabrao Bobade & Anr v State ofMaharashtrawhere the following observations were made:

“Certainly, it is primary principle that the accused must beand not merely may be guilty before court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) The facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say. theyshould not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of conclusive nature andtendency.

(4) they should exclude every possible hypothesis except theone to be proved, and

59 (1969) 3 SCC 198

60 AIR 1972 SC 656

61 (1984) 4 SCC 116

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.

BThese five golden principles, if we may say so, constitute thepanchsheel of the proof of case based on circumstantialevidence.”

151. These principles have stood the test of time, and the evidencein all criminal cases, have been evaluated in their light, throughout theCcountry. In light of these binding principles this court would now examinewhether the circumstances supported by evidence, i.e., those acceptedby this court in the previous part of the judgement, was of such conclusionas to stand the test of the five golden principles enunciated in Sarda(supra).DSummation of proof of circumstances

152. The prosecution relied upon several circumstances whichwere accepted concurrently by the Courts below.These were thedepositions of PW-10 the chance witness who claimed to have witnessedall three accused fleeing the spot around 5:45 or 6:00 PM on the day ofEthe incident;the recovery of articles from the crime scene (fired cartridge,live bullet, sunglasses, black beads, etc.) and lifting of the fingerprints(testified by PW-24 and corroborated by witnesses PW-5 and PW-9);and seizure of stolen articles pursuant to disclosure by the accused.PW-1 who recorded his statement day after the incident (on 21.06.2011),specifically reported the loss of jewellery items such as four pairs ofFbangles, mangalsutra, ATM cards, etc. These were later recovered atthe direction of the accused, whichthe prosecution claimed to be abreakthrough.

153. It was found by the courts below that Neha was arrested inthe morning of 22.06.2011 after she was found suspiciously loitering byGPW-28. The arrest occurred after she was searched and later questioned.The arrest was witnessed PW-3 and PW-6 who also deposed towitnessing the police recording Neha’s disclosure statement. Recoveriesof valuables and articles, such as two pairs of golden bangles, part of abroken mangalsutra, other valuables and an ATM card, which belong toMegha were from her house. Neha’s disclosure statement about theHinvolvement of other accused (Rahul and Manoj) led to their arrest anddisclosure statements on the same day – all of which was witnessed byPW-3 and PW-6. Again, gold jewellery items were recovered fromRahul’s premises as also country-made pistol, and subsequently, knife.In addition, photograph with him wearing sunglasses was seized fromhis house. Manoj was likewise arrested and his disclosure statement ledto the recovery of knife, pair of golden bangles, part of brokenmangalsutra, etc. Later during the same day on 22.06.2011, rightshoe was recovered by another police station (Annapurna PS). It wasseized; which was witnessed by PW-20. At that time, its connectionwith the murders was unknown. The prosecution also relied on adisclosure statement said to have been recorded on 23.06.2011 leadingto the recovery of clothes at the behest of Neha, Rahul and Manoj fromvarious open sites. Further, at Neha’s behest Scooty with servicebook was recovered and seized, and at Manoj’s behest, amotorcyclereportedly stolen was found. These recoveries were witnessed by PW-7 an independent witness. The prosecution relied upon two sets of TIPproceedings, which sought to identify on the one hand, Manoj and Rahul,and on the other, Neha. It also relied upon the TIP proceedings in whichPW-1 identified the stolen articles which he had reported loss of, on21.06.2011 itself. The prosecution had relied upon other evidence suchas the match of fingerprints, in terms of the expert’s report (Ex. P84, byPW-24) upon the reports of the ballistic expert (PW-16),and of the DNAexpert (PW-35). It also sought to rely upon the report of another expertwho spoke about the probability of shoe print match.

154. In the preceding discussion of the evidence in the earlier partof this judgement, this court has held that though the prosecution versionof how Neha was arrested had to be disbelieved, it did not taint hersubsequent disclosure, which led to the seizure and recovery of stolenarticles from her premises - four stolen pieces of jewellery, and an ATMcard which belonged to Megha, the deceased (proved by PW-27, bankofficial). The previous discussion of the evidence relating to the otheraccused led this court to infer that the prosecution was able to prove therecovery of articles seized on 22.06.2011 from the premises of Rahuland Manoj i.e., golden bangles, parts of broken mangalsutra, eachfrom the houses of the accused, country made pistol and knife, fromRahul’s house at his behest. This court also concluded that the TIPproceedings conducted in respect of the stolen articles was validly provedby the prosecution. The report of the ballistic expert PW-16, has been

Aheld to have established that the seized bullets (from the crime scene),matched with the test fired bullet from the pistol seized from Rahul’shouse at his behest. The recovery of right shoe with bullet hole on22.06.2011, likewise was proved by the prosecution. The othercircumstance which the prosecution relied upon in this context, pointingto Rahul’s involvement was his treatment by PW-32. Rahul had late inBthe evening of 19.06.2011, reported to PS Annapurna, that he was shoton the right foot, by some unknown assailants which was recorded byPW-29, who also identified him in the court. PW-29 further deposed thatRahul first went to District hospital and was treated by PW-26, whothen referred him to MY hospital. Later in the early hours of 20.06.2011CRahul was operated upon by PW-32 who extracted the bullet, sealed itand kept it with the MLC cell. This bullet was seized by the police andsent to the ballistic expert (PW-24) who in his report supported theprosecution’s version that the bullet was fired from the same weaponwhich had discharged the bullet that was extracted from the deceasedMegha’s body.D155. This court has disbelieved the prosecution allegation withrespect to the circumstances surrounding Neha’s arrest, principallybecause of the evidence of DW-1. It is quite clear that DW-1 DeepikaShinde was involved to an extent during the initial stages of theinvestigation and according to the police records, was responsible forEthe breakthrough which led among others, to her out-of-turn promotion,swiftly. This court has also disbelieved the story of the prosecution withrespect to the recoveries alleged to have been made on 23.06.2011,mainly on the ground that when according to the official version theaccused were nabbed and had made the disclosure statements the

Fprevious day, nothing prevented the police from recording the entirety ofit and proceeding to recover articles which were supposedly hidden inopen spaces. Further, the court has not accepted the prosecution’s storywith respect to the chance witnesses, PW-10 and his identification ofthe accused in TIP proceedings.

G156. During the hearing, the appellants’ counsel had urged thatthe findings of the trial court are unsustainable, because they overlookedseveral lacunae which cumulatively tended to undermine theprosecution’s case. The omission to examine certain witnesses (such asPW-1’s driver, Nandakumar; Abhay Tiwari, who along with PW-20 foundthe right shoe with bullet hole; Amit Soni, who went to the TIP ofH

articles, with some jewellery items; Prakash Ichke, who witnessed therecoveries and seizures on 23.06.2011, Constable Dinesh, whoaccompanied Rahul to MY hospital, etc.). It was also emphasized thatthe silence of certain witnesses (such as PW-4, in regard to whether shewitnessed the arrest, and search of Neha; of PW-19, who was silentabout receiving report from PW-28 regarding Neha’s suspiciousactivities in the morning of 22-06-2011; silence by prosecution witnessesabout DW-1’s role), too, cast grave doubts about the prosecution version.Furthermore, it was contended that the seizure, sealing, transmission ofarticles found at the crime scene and recovered from the accused’spremises, as well as open areas, as well as their chain of custody wasnot proved.

157. This court has previously discussed the probative value ofthe evidence relied on by the prosecution, and rejected the way in whichNeha was apprehended, the recoveries made on 23.06.2011, the TIP ofthe accused, the deposition of PW-10 and of PW-8, and the DNA andshoeprint analysis. The first question is whether having regard to therejection of some of the prosecution evidence, the case against theaccused, as whole, stands disproved. This aspect has been consideredin earlier decisions of this court where defects in investigation, or lapsesin the recollection during testimonies of witnesses, were involved. InState of U.P. v. Anil Singh[62], this court observed as follows:

“17. It is also our experience that invariably the witnessesadd embroidery to prosecution story, perhaps for the fear ofbeing disbelieved. But that is no ground to throw the caseoverboard, if true, in the main. If there is ring of truth in themain, the case should not be rejected. It is the duty of thecourt to cull out the nuggets of truth from the evidence unlessthere is reason to believe that the inconsistencies or falsehoodare so glaring as utterly to destroy confidence in the witnesses.It is necessary to remember that Judge does not presideover criminal trial merely to see that no innocent man ispunished. Judge also presides to see that guilty man doesnot escape. One is as important as the other. Both are publicduties which the Judge has to perform.”

AIn C. Muniappan v. State of Tamil Nadu[63 ]it was held that:

“The defect in the investigation by itself cannot be groundfor acquittal. If primacy is given to such designed or negligentinvestigations or to the omissions or lapses by perfunctoryinvestigation, the faith and confidence of the people in theBcriminal justice administration would be eroded. Where therehas been negligence on the part of the investigating agencyor omissions, etc. which resulted in defective investigation,there is legal obligation on the part of the court to examinethe prosecution evidence dehors such lapses, carefully, to findout whether the said evidence is reliable or not and to whatCextent it is reliable and as to whether such lapses affected theobject of finding out the truth.

similar approach was adopted in Surajit Sarkar v. State ofWest Bengal[64] and Shanker & Ors. v. State of Madhya Pradesh[65]. InHarijana Thirupala and Ors. v. Public Prosecutor, High Court ofDA.P., Hyderabad[66] this court said that:

“…The case of the prosecution must be judged as wholehaving regard to the totality of the evidence.

In appreciating the evidence, the approach of the court mustbe integrated not truncated or isolated. In other words, theEimpact of evidence in totality on the prosecution case orinnocence of Accused has to be kept in mind in coming theconclusion as to the guilt or otherwise of the accused. Inreaching conclusion about the guilt of the accused, the courthas to appreciate, analyse and assess the evidence placedFbefore it by the yardstick of probabilities, its intrinsic valueand the animus of witnesses.”

158. This court has further emphasized that if discrepancies inthe depositions are minor, or that witness contradict themselves duringtheir testimonies (as opposed to their previous police statements) whatis important is the nature of contradictions. In Rammi @ Rameshwar v.GState of Madhya Pradesh[67], this Court held that:

63 (2010) 9 SCC 56764 (2013) 2 SCC 14665 (2018) 15 SCC 72566 (2002) 6 SCC 470H67 (1999 ) 8 SCC 649

“24….Courts should bear in mind that it is only whendiscrepancies in the evidence of witness are so incompatiblewith the credibility of his version that the Court is justified injettisoning his evidence. But too serious view to be adoptedon mere variations falling in the narration of an incident(either as between the evidence of two witnesses or as betweentwo statements of the same witness) is an unrealistic approachfor judicial scrutiny.”

In Appabhai and Anr. v. State of Gujarat[68], it was ruled that“The Court while appreciating the evidence must not attach undueimportance to minor discrepancies. The discrepancies which do notshake the basic version of the prosecution case may be discarded”.In similar vein, it was observed, in Vinod Kumar v. State of Haryana[69]that

“Only when discrepancies in the evidence of witness are soincompatible with the credibility of his version that it wouldbe justified in jettisoning his evidence.”

159. The omission of some of the prosecution witnesses to mentiona particular fact, or corroborate something, which is deposed to by otherwitnesses, therefore, does not ipso facto favour an accused. What isimportant, however, is whether the omission to depose about fact is sofundamental that the prosecution version becomes shaky and incredulous.In the present case, the omission to depose about certain facts, by PW-4, or PW-19, or any other witness cannot inure to the accused’s benefit.Each of the facts they omitted, was supported by one or more witnesses.Likewise, the failure to examine certain persons, like Anil Soni, PrakashIchke, Abhay Tiwari, or Nandakumar, cannot inure to the accused’sbenefit. Anil Soni was present during the TIP of seized articles, whenother similar articles brought by him, for comparison and identificationby PW-1. The latter witness was able to identify the articles which hadbeen seized from the accused; this was deposed to by PW-12, whosetestimony cannot be doubted. The failure to examine Anil Soni therefore,was lapse, but not fatal one, as far as the TIP itself went. Likewise,the failure to examine Prakash Ichke is of no consequence, because therecoveries made on 23.06.2011 have not been accepted. The omission

68 1988 Supp (1) SCC 241

69 (2015) 3 SCC 138

Ato examine Nandakumar is also inconsequential, given the sequence ofreporting of the crime, and the rapidity of the events which developedafter it. No doubt, Abhay Tiwari noticed the right shoe with bullet hole,first; however, PW-20 was also with him; he deposed to the fact of itsdiscovery and seizure. Similarly, the failure to examine constable Dineshis also not fatal, given the testimony of PW-29 and PW-30.B

160. In Shivaji Sahebrao Bobade v. State of Maharashtra[70] ,this court held that even where case hangs on the evidence of one eyewitness, it may be enough to sustain the conviction given sterling testimonyof competent, honest man although as rule of prudence courts callfor corroboration; it was observed thatC

“It is platitude to say that witnesses have to be weighed andnot counted since quality matters more than quantity in humanaffairs.”

Kartike Malhar v. State of Bihar[71] referred to previous decisions,Dand stated:

“On conspectus of these decisions, it clearly comes out thatthere has been no departure from the principles laid down inVadivelu Thevar case and, therefore, conviction can berecorded on the basis of the statement of single eye witnessEprovided his credibility is not shaken by any adversecircumstance appearing on the record against him and thecourt, at the same time, is convinced that he is truthfulwitness.”

161. Therefore, unless it is shown that the omission to examine aFwitness, who had previously participated during the investigation andwhose statement was recorded by the police, undermines the prosecutioncase, or impacts on it significantly, the foundation of the fact or factswhich are sought to be proved, remains unshaken as long as that fact isdeposed to or spoken about by other witnesses, whose testimonies areto be seen in their own terms. Therefore, the omission to examine theGindividuals left out, but who the prosecution claimed, had participatedduring the investigation, did not affect its case, as far as the circumstancesheld to have been established by it, are concerned. Having dealt with

70 (1973) 2 SCC 793H71 (1996) 1 SCC 614

contentions of the accused, and also discussed circumstances that couldbe established (and what was not established) this court proceeds tosummarize its findings.

162. As against Neha, this court has held that the circumstancesproved are, firstly, recovery of articles including two golden bangles, abroken mangalsutra, 3 guriyas, gold pendant, an ATM Card whichbelonged to Megha on 22.06.2011. The loss of these articles was reportedby PW-1, on 21.06.2011, i.e. one day before Neha’s arrest. The secondcircumstance proved by the prosecution is the TIP of these articles byPW-1 who was able to correctly identify them (as also corroborated byPW-12 during the trial). Linked with this circumstance is the depositionof PW-27, Bank of India, Ujjain official who deposed to issuing letterto the SHO, (Ex. P98), containing the ATM card numbers. The ATMcard (5264959108034023) which belonged to Megha, recovered on22.06.2011 pursuant to Neha’s disclosure statement, from her house,was issued by that bank.The third circumstance proved by the prosecutionagainst Neha is her fingerprint. PW-24 KK Dwivedi, the fingerprintexpert, deposed to searching the crime scene for possibility of liftingimpressions of fingerprints. set of five fingerprints (i.e. Ex P80 chancefingerprints) were lifted by him which was witnessed by two witnesses(PW-5 and PW-9) who corroborated the fact. This court has held,previously that the possibility of others’ presence at the crime scene,and its contamination could be ruled out, because of the deposition ofthese two witnesses, as well as other depositions. PW-17 obtained thefingerprint samples of Neha (Ex. P43), which he deposed to during thetrial. The deficiencies alleged by the appellants, in the opinion of thiscourt, about the procedural lapses in the collection of such evidence, arenot convincing. The evidence of PW-24, as well as his report (Ex. P84)prove that chance fingerprint (sample E, collected from the crimescene) matched with the sample obtained from her, by PW-17 duringthe investigation. The fourth circumstance, against Neha, which wasestablished during the trial - and vital one, is her knowledge of thecrime. Her disclosure statement, led to arrests of Rahul and Manoj, andrecovery of stolen and other articles from their possession. Thecircumstances surrounding the manner of Neha’s apprehension havebeen disbelieved by this court, as well as the testimony of PW-10 andthe TIP proceedings, during which he identified her.

163. As against Rahul, this court has held that firstly, thecircumstances relating to his arrest (witnessed by PW-3 and PW-6), on

A22.06.2011 was proved by the prosecution. The second circumstanceproved is that his disclosure statement led to recovery and seizure ofstolen articles and other articles connected with the crime (Ex. P14),including two bent golden bangles, part of broken mangalsutra, countrymade pistol, knife measuring 35.5 cm, and photograph showing Rahulwearing black diamond-like beaded bracelet. The third circumstance isBthat, like with Neha, PW-1 identified the gold jewellery recovered fromRahul’s possession, during the TIP (further corroborated by PW-12).The fourth circumstance proved is that PW-24 the fingerprint expert,deposed that he found that prints and lifted from the crime scene(as corroborated by PW-5 and PW-9) matched with the index and middleCfinger prints respectively of Rahul’s right hand, in the sample (Ex. P41)collected from him by PW-17. The fifth circumstance proved during thetrial is that Rahul had reported late in the evening of 19.06.2011, that hewas shot on the right foot, by unknown persons. This was recorded inthe form of dehatinalisi against unknown persons; later an FIR (Ex.P107) was registered by PW-30 for offences punishable under SectionsD294, 307 and 34, IPC. Rahul was initially taken to the District hospital(proved by the treatment card Ex.P97 dated 19.06.2011). Rahul washowever, referred to MY hospital, and examined by PW-32, who operatedupon him. Ex.P113 is the discharge cardof MY hospital signed by PW-32 (who also deposed about it) on 20.06.2011. PW-29who recorded theEinitial report dehatinalisi, also identified Rahul as the boy who hadreported the incident. The bullet extracted from his footwas deposited(under memo Ex. P113) in the medico legal cell of the hospital, and laterseized (under memo Ex. P108) on 23.06.2011. The FIR relating to thiscase was later closed. The other fact proved is the seizure of rightshoe (Ex. P75) under jurisdiction of Annapurna PS (proved by PW-20),Fwhichthe trial court observed had bullet hole at the top. The sixthcircumstance proved against Rahul, which is material, is the ballisticreport which stated that the two bullets (found at the crime scene) werecompatible to the certified bullet of 7.65 mm calibre cartridge; BulletTB-A1 was found similar. Three pieces of skin were found copperGpositive.Importantly, according to the report, two bullets, EB2 and EB1(recovered from the body of Megha, the deceased, and Rahul’s rightfoot respectively) were fired from pistol Ex-A1, seized from Rahul’shouse. The report also stated that the gun-shot fired at the seized rightshoe (mentioned above) was caused by copper jacketed bullet. All thiswas proved by the ballistics report (Ex. P120) that had analysed each ofH

these items.The report also revealed that the ballistics expert (PW-16)had test fired from the pistol sent to FSL,and had found that the pistolhad signs that the two spent cartridges, were fired from it.

164. As against Manoj, this court has held several circumstancesto have been proved. The first circumstance proved against him, is hisarrest and subsequent disclosure statement, at 10:05 AM on 22.06.2011(proved by PW-3 and PW-6). The second circumstance is the recoveryand seizure of articles, at Manoj’s behest, and from his possession,including - two golden bangles, portion of broken mangalsutra, knifeand photograph with Manoj in sunglasses (Ex. P17, also proved bysame witnesses). The third circumstance proved against Manoj is thatPW-1 identified the golden jewellery recovered from his possession,during the TIP (corroborated by PW-12).

165. This court is of the opinion that all the circumstances and thelink connecting them, was sufficiently established by the prosecutionand proved beyond reasonable doubt. Similarly, every hypothesissuggesting the innocence of the appellants is ruled out by such evidence,and the irresistible inference which follows, is their guilt.

166. In the opinion of this court, the proof of the circumstancesagainst the appellants clearly points to their guilt, and involvement in thecrime. It appears that the appellants had informed themselves about thedeceased and their movement. Perhaps they kept watch over the area.Their common intention clearly was to rob the deceased, who had newlyshifted to Indore and into the locality, on 19.06.2011. Though the exacttime of occurrence is unknown, the post-mortem report reflected theduration of death within 12 to 36 hours from the time procedure started,which was after 11 AM on 20.06.2011. It is reasonable to infer, therefore,that death occurred sometime during the day, on 19.06.2011. Though theevidence of PW-10 has been disbelieved, the evidence of PW-5, PW-9and PW-2, shows that the crime was noticed in the evening of 19.06.2011when the bodies were discovered, and the police reached the scene.

167. The nature and description of the injuries on the deceasedshow that they had apparently put up fight- which perhaps the appellantshad not expected. The intention to rob the deceased, and coerce theminto handing over their valuables, soon turned violent, due to theunexpected fight put up against the accused. There are several sharp-edged injuries, and one bullet injury which fatally wounded Megha. As aresult, it is evident that to subdue the three deceased women, the accused

Aresorted to frenzied knife attacks. The persistent resistance given by thedeceased, coupled with the nature of injuries with sharp weapons (thetwo knives) were fatal to both Rohini and Ashlesha. The fact that theaccused had to repeatedly stab them, reveals that the said appellantswere not familiar with wielding such weapon. Weapons (2 knives and1 pistol) have specifically been recovered from the possession of ManojBand Rahul, and in these circumstances, their conviction for the offenceswith which they were charged, is justified.

168. Information as to how these attacks occurred within the houseof the deceased and the distinct roles played by the accused, are in thespecial knowledge of only the accused; but no such information wasCforthcoming through the course of the trial or appellate stage. This court[72]has held that common intention requires prior meeting of mind, whichcan also be developed in the spur of the moment, provided there ispremeditated concert. The circumstances reflect that there was clearcommon intention among the three accused, to rob the house, and uponDfacing resistance - to complete the job and leave undetected, by all meansnecessary. While no weapon has been recovered from Neha, it is clearthat she was involved in the offences, and was present at the scene ofthe crime. This is evidenced by firstly,the fingerprint expert’s testimonyand report, which clearly reflects that her fingerprint was lifted from thecrime scene;secondly, the recovery of stolen articles (gold jewellery,EMegha’s ATM card, etc.) from her possession; and thirdly, the fact thatManoj and Rahul are only arrested pursuant to her disclosure of theirparticipation - all of which, cumulatively, clearly establishher involvement.The lack of an overt or specific act of violence attributable to Neha doesnot exonerate her, given that the prosecution has been able to prove her

Fpresence at the crime scene and participation in the commission of theoffences, and that there was common object.

169. For the above reasons, all three accused are held guilty ofthe offences under Section 397/34, 449/34 and 302/34 IPC. Additionally,Manoj and Rahul’s conviction under Section 25(1-B)(B) of the ArmsGAct, and Rahul’s conviction under Section 27 of the Arms Act, is upheld.

170. Before proceeding to consideration of the question ofsentence, this court finds it necessary to briefly highlight the role of thepublic prosecutor and trial court in criminal trial, so as to safeguard the

H72 Ramashish Yadav v. State of Bihar (1999) 8 SCC 555

rights of the accused. The concealment of DW-1’s role in this case’sinvestigation (her analyzing of call detail records of the deceased and inconnection to Neha – which was not produced in trial; tip-off allegedlyreceived regarding Neha’s whereabouts and what she would be wearing;participating in Neha’s arrest, and subsequent involvement on 23.06.2011in recoveries of articles) points to concerning gaps in the manner ofinvestigation carried out initially, or at the very least, anuntruthfulrecollection and presentation of it, for the purposes of trial. As elaboratedearlier, these facts prompted this court to draw adverse inferences againstthe prosecution’s version of Neha’s arrest. Other circumstances havebeen proved sufficiently to conclude their guilt and result in conviction.However, it is appropriate to also point out that concealment of DW-1’srole and failure to include the call detail records, could have severelyprejudiced the accused, had these other circumstances not been madeout. Therefore, at this juncture, it is pertinent to note and reiterate therole of the public prosecutor, and trial court, in arriving at the truth byway of fair disclosure and scrutiny byinquiry, respectively.

171. public prosecutor (appointed under Section 24 CrPC)occupies statutory office of high regard. Rather than part of theinvestigating agency, they are instead, an independent statutory authority[73]who serve as officers to the court[74]. The role of the public prosecutor isintrinsically dedicated to conducting fair trial, and not for “thirst toreach the case in conviction”. This court in Shiv Kumar v. HukamChand[75]further held that

“….if an accused is entitled to any legitimate benefit duringtrial the Public Prosecutor should not scuttle/conceal it. Onthe contrary, it is the duty of the Public Prosecutor to winch itto the force and make it available to the accused…”.

In Siddharth Vasisht @ Manu Sharma v. State of NCT Delhi[76](hereafter ‘Manu Sharma’) it was concluded that

“187. Therefore, Public Prosecutor has wider set of dutiesthan to merely ensure that the accused is punished, the duties

of ensuring fair play in the proceedings, all relevant facts

73 Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602

74 Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277

75 (1999) 7 SCC 467

76 (2010) 6 SCC 1

548SUPREME COURT REPORTS

Aare brought before the court in order for the determination oftruth and justice for all the parties including the victims. Itmust be noted that these duties do not allow the Prosecutor tobe lax in any of his duties as against the accused.”

172. In Manu Sharma, the appellants in question had argued thatBthe right to fair trial included wide duty of disclosure on the publicprosecutor, such that non-disclosure of any evidence – whether or notrelied upon by the prosecution – must be made available to the defence.This court considered Section 207 and 208 CrPC, Rule 16[77] of the BarCouncil of India Rules (which is limited to evidence on which prosecutorproposes to rely on), and English law. The common law position culledCout was that subject to exceptions like sensitive information and publicinterest immunity, the prosecution should disclose any material whichmight be exculpatory to the defense. Such position, however, was notaccepted by this court, in its totality. It was held that such obligations areon different footing in India, given the fundamental canons of ourDcriminal jurisprudence founded on Articles 20 and 21 of the Constitution,which require not just the investigating agency, but also courts in theirown independent field, to ensure that investigation is fair and does nothamper the individual’s freedom, except in accordance with law, i.e.,ensure adherence to the rule of law. Relevant extracts that merit repetition:

“199. It is not only the responsibility of the investigatingagency but as well as that of the courts to ensure thatinvestigation is fair and does not in any way hamper thefreedom of an individual except in accordance with law.Equally enforceable canon of the criminal law is that the highresponsibility lies upon the investigating agency not to conductFan investigation in tainted and unfair manner. Theinvestigation should not prima facie be indicative of biasedmind and every effort should be made to bring the guilty tolaw as nobody stands above law dehors his position andinfluence in the society.G****

77 Rule 16 of the Chapter II, Part VI of the Bar Council of India Rules under theAdvocates Act, 1961: “16. An advocate appearing for the prosecution in criminaltrial shall so conduct the prosecution that it does not lead to conviction of the innocent.The suppression of material capable of establishing the innocence of the accused shallHbe scrupulously avoided.”

201. Historically but consistently the view of this Court hasbeen that an investigation must be fair and effective, mustproceed in proper direction in consonance with the ingredientsof the offence and not in haphazard manner. In some casesbesides investigation being effective the accused may have toprove miscarriage of justice but once it is shown the accusedwould be entitled to definite benefit in accordance with law.The investigation should be conducted in manner so as todraw just balance between citizen’s right under Articles 19and 21 and expansive power of the police to make investigation.These well-established principles have been stated by this Courtin Sasi Thomas v. State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri)72] , State (Inspector of Police) v. Surya Sankaram Karri [(2006)7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State ofKerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] .202. In Nirmal Singh Kahlon v. State of Punjab [(2009) 1SCC 441 : (2009) 1 SCC (Cri) 523] this Court specifically statedthat concept of fair investigation and fair trial areconcomitant to preservation of the fundamental right of theaccused under Article 21 of the Constitution of India. Wehave referred to this concept of judicious and fairinvestigation as the right of the accused to fair defenceemerges from this concept itself. The accused is not subjectedto harassment, his right to defence is not unduly hamperedand what he is entitled to receive in accordance with law isnot denied to him contrary to law.”

173. The scheme of the CrPC under Chapter XII (information topolice and powers to investigate) is clear – the police have the power toinvestigate freely and fairly; in the course of which, it is mandatory tomaintain diary where the day-to-day proceedings are to be recordedwith specific mention of time of events, places visited, departure andreporting back, statements recorded, etc. While the criminal court isempowered to summon these diaries under Section 172(2) for the purposeof inquiry or trial (and not as evidence), Section 173(3) makes it clearthat the accused cannot claim any right to peruse them, unless the policethemselves, rely on it (to refresh their memory) or if the court uses it forcontradicting the testimony of the police officers.[78]

78 Mukund Lal v. Union of India 1989 Supp (1) SCC 622, Malkiat Singh v. State ofPunjab (1991) 4 SCC 341.

ABC

A174. In Manu Sharma, in the context of policy diaries, this courtnoted that “the purpose and the object seems to be quite clear thatthere should be fairness in investigation, transparency and recordshould be maintained to ensure proper investigation”. This objectis rendered entirely meaningless if the police fail to maintain the policediary accurately. Failure to meticulously note down the steps taken duringBinvestigation, and the resulting lack of transparency, undermines theaccused’s right to fair investigation; it is up to the trial court that musttake an active role in scrutinizing the record extensively, rather thanaccept the prosecution side willingly, so as to bare such hidden orconcealed actions taken during the course of investigation.[79]C175. In the present case, the trial court ought to have inquiredmore deeply into the role of DW-1, given that by her own deposition shehad admitted to analyzing call detail records and involvement in Neha’sarrest – all of which had been suppressed by the prosecution side, forreasons best known to them. In this context, reading of Section 91 andD243 CrPC as done in Manu Sharma, is important to refer to:

“217. ..Section 91 empowers the court to summonproduction of any document or thing which the court considersnecessary or desirable for the purposes of any investigation,inquiry, trial or another proceeding under the provisions ofEthe Code. Where Section 91 read with Section 243 says that ifthe accused is called upon to enter his defence and producehis evidence there he has also been given the right to applyto the court for issuance of process for compelling theattendance of any witness for the purpose of examination,cross-examination or the production of any document or otherFthing for which the court has to pass reasoned order.”

176. The court went on to elaborate on the due process protectionafforded to the accused, and its effect on fair disclosure responsibilitiesof the public prosecutor, as follows:

G“218. The liberty of an accused cannot be interfered withexcept under due process of law. The expression “due processof law” shall deem to include fairness in trial. The court(sic Code) gives right to the accused to receive all documents

79 Role of the courts in criminal trial has been discussed in Zahira HabibullaH.ShiekHv. State of Gujarat (2004) 4 SCC 158.

and statements as well as to move an application forproduction of any record or witness in support of his case.This constitutional mandate and statutory rights given to theaccused place an implied obligation upon the prosecution(prosecution and the Prosecutor) to make fair disclosure. Theconcept of fair disclosure would take in its ambit furnishingof document which the prosecution relies upon whether filedin court or not. That document should essentially be furnishedto the accused and even in the cases where duringinvestigation document is bona fide obtained by theinvestigating agency and in the opinion of the Prosecutor isrelevant and would help in arriving at the truth, that documentshould also be disclosed to the accused.

219. The role and obligation of the Prosecutor particularlyin relation to disclosure cannot be equated under our law tothat prevalent under the English system as aforereferred to.But at the same time, the demand for fair trial cannot beignored. It may be of different consequences where documentwhich has been obtained suspiciously, fraudulently or bycausing undue advantage to the accused during investigationsuch document could be denied in the discretion of theProsecutor to the accused whether the prosecution relies ornot upon such documents, however in other cases theobligation to disclose would be more certain. As alreadynoticed the provisions of Section 207 have material bearingon this subject and make an interesting reading. This provisionnot only require or mandate that the court without delay andfree of cost should furnish to the accused copies of the policereport, first information report, statements, confessionalstatements of the persons recorded under Section 161 whomthe prosecution wishes to examine as witnesses, of course,excluding any part of statement or document as contemplatedunder Section 173(6) of the Code, any other document orrelevant extract thereof which has been submitted to theMagistrate by the police under sub-section (5) of Section 173.In contradistinction to the provisions of Section 173, wherethe legislature has used the expression “documents on whichthe prosecution relies” are not used under Section 207 of the

Code. Therefore, the provisions of Section 207 of the Codewill have to be given liberal and relevant meaning so as toachieve its object. Not only this, the documents submitted tothe Magistrate along with the report under Section 173(5)would deem to include the documents which have to be sentto the Magistrate during the course of investigation as perthe requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure ofdocuments is limited right but is codified and is the veryfoundation of fair investigation and trial. On such matters,the accused cannot claim an indefeasible legal right to claimevery document of the police file or even the portions whichare permitted to be excluded from the documents annexed tothe report under Section 173(2) as per orders of the court.But certain rights of the accused flow both from the codifiedlaw as well as from equitable concepts of the constitutionaljurisdiction, as substantial variation to such procedure wouldfrustrate the very basis of fair trial. To claim documentswithin the purview of scope of Sections 207, 243 read withthe provisions of Section 173 in its entirety and power of thecourt under Section 91 of the Code to summon documentssignifies and provides precepts which will govern the right ofthe accused to claim copies of the statement and documentswhich the prosecution has collected during investigation andupon which they rely.

221. It will be difficult for the Court to say that the accusedFhas no right to claim copies of the documents or request theCourt for production of document which is part of the generaldiary subject to satisfying the basic ingredients of law statedtherein. document which has been obtained bona fide andhas bearing on the case of the prosecution and in the opinionof the Public Prosecutor, the same should be disclosed to theGaccused in the interest of justice and fair investigation andtrial should be furnished to the accused. Then that documentshould be disclosed to the accused giving him chance of fair-defence, particularly when nonproduction or disclosure ofsuch document would affect administration of criminalHjustice and the defence of the accused prejudicially.

222. The concept of disclosure and duties of the Prosecutorunder the English system cannot, in our opinion, be madeapplicable to the Indian criminal jurisprudence strictosensuat this stage. However, we are of the considered view that thedoctrine of disclosure would have to be given somewhatexpanded application. As far as the present case is concerned,we have already noticed that no prejudice had been causedto the right of the accused to fair trial and non-furnishing ofthe copy of one of the ballistic reports had not hampered theends of justice. Some shadow of doubt upon veracity of thedocument had also been created by the prosecution and theprosecution opted not to rely upon this document. In thesecircumstances, the right of the accused to disclosure has notreceived any setback in the facts and circumstances of thecase. The accused even did not raise this issue seriouslybefore the trial court.

(emphasis supplied)

177. In this manner, the public prosecutor, and then the trial court’sscrutiny, both play an essential role in safeguarding the accused’s rightto fairinvestigation, when faced with the might of the state’s policemachinery.

178. This view was endorsed in recent three judge decision ofthis court in Criminal trials guidelines regarding Inadequacies andDeficiencies, in re v. State of Andhra Pradesh[80]. This court hashighlighted the inadequacy mentioned above, which would impede fairtrial, and inter alia, required the framing of rules by all states and HighCourts, in this regard, compelling disclosure of list containing mentionof all materials seized and taken in, during investigation- to the accused.The relevant draft guideline, approved by this court, for adoption by allstates is as follows:

“4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207AND 208 CR.PC

Every Accused shall be supplied with statements of witnessrecorded under Sections 161 and 164 Cr.PC and list ofdocuments, material objects and exhibits seized during

Ainvestigation and relied upon by the Investigating Officer (I.O)in accordance with Sections 207 and 208, Cr. PC.

Explanation: The list of statements, documents, materialobjects and exhibits shall specify statements, documents,material objects and exhibits that are not relied upon by theBInvestigating Officer.”

179. In view of the above discussion, this court holds that theprosecution, in the interests of fairness, should as matter of rule, in allcriminal trials, comply with the above rule, and furnish the list of statements,documents, material objects and exhibits which are not relied upon byCthe investigating officer. The presiding officers of courts in criminal trialsshall ensure compliance with such rules.

On Sentence

180. The hearing of this case was adjourned for sentencing on asubsequent date, before which the learned counsels submitted materialDregarding the lives of the accused – both before the incident and post-conviction by the trial court, jail reports and other materialcalled for bythis court were received from the State, and written submissions werefiled by both sides.

181. In the course of arguments, the learned AAG maintainedEthat there were no mitigating circumstances and the cruelty evident fromthe nature of the crime, warrants nothing less than the capital punishment,which according to it was correctly imposed, concurrently. It wassubmitted that it is in cases like the present one, where the “rarest ofrare” doctrine needs to be invoked as deterrent.F

182. On the other hand the counsels for the accused laid emphasison the fact that neither of the courts below had even considered thepossibility of reform of the accused who were all of young age andbarring Manoj (who had been involved in petty offence in the past) theothers did not have any criminal antecedents. Counsel also argued thatGan overall look at the circumstances, at best, could lead the court toconclude that the extensive injuries inflicted upon the deceased were inall probability on account of the plans of the accused going awry, upontheir encountering the victims’ resistance. It was submitted besides thatthe potential of each convict to be reformed – both having regard totheir previous backgrounds, as well as conduct in jail during pendency ofH

trial and confirmation, was not considered. This amounted to an infractionof the rule in Bachan Singh v. State of Punjab[81]. Counsels relied onnumerous judgments relating to the importance of considering mitigatingcircumstances, the state’s role in demonstrating the accused is beyondreformation, mitigating circumstances such as age and socio-economicbackground, pre-sentence hearing – its scope and the court’s obligation,etc.

183. Capital punishment is prescribed in numerous IPC offences,including murder, kidnapping for ransom, rape and injury causing deathor leaving woman in vegetative state, rape or gang rape of childbelow 12 years old, dacoity with murder, among other offences. InBachan Singh v. State of Punjab[82](hereafter, ‘Bachan Singh’), thiscourt had upheld the imposition of death penalty as an alternate punishmentunder Section 302 IPC on the strength of the 35[th] Report of the LawCommission of India (1967), the judgment in Jagmohan Singh v. Stateof Uttar Pradesh[83] (which had also noted that the 35[th] Report advocatedfor retention) and in several subsequent cases decided by this court, inwhich the death penalty was recognised to be deterrent. It laid emphasison the then recently added S. 253(2) and 354(3) CrPC which providefor bifurcated pre-sentence hearing and sentencing procedure onconviction of capital offences, to conclude that this form of punishmentcontinued to have legislative backing and thereby, represented the willof the people.

184. It is undeniable that there have been shifts in how punishmentin capital offences are dealt with. This is apparent when developmentsare looked at holistically, or at macro level: the amendments to theCrPC by Parliament, the 35[th] and 262[nd] Law Commission Reports whichstand over 30 years apart, and the precedents of this court, across thedecades. Initially, the law imposed requirement of written reasons fornot imposing death penalty, which was removed in 1955. In 1973, throughfurther amendment to the CrPC and insertion of Section 354(3) - lifeimprisonment became the norm and imposition of death penalty required‘special reasons’; and through Section 253(2) – sentencing requiredseparate consideration from the question of conviction. In both phases,i.e., post-1955 and post-1973, capital punishment was upheld to be

81 (1980) 2 SCC 684

82 (1980) 2 SCC 684

83 (1973) 1 SCC 20

Aconstitutional by 5-judge benches of this court in Jagmohan Singh andBachan Singh, respectively.

185. The 262[nd] Law Commission Report on Death Penalty (2015)(hereafter, ‘262[nd] Report’), is result of this court’s references inprimarily two cases. Firstly, in Santosh Kumar Satishbhushan BariyarBv. State of Maharashtra[84](hereafter ‘Santosh Bariyar’) where, aftertaking note of the UN General Assembly Resolution 62/149[85] it waspointed out that credible research was required to shape an informeddiscussion and debate, on the contentious issue of death sentence.Secondly, the judgment in Shankar Kisanrao Khade v. State ofMaharashtra[86 ]tasked the Law Commission to resolve the issue ofCwhether death penalty is deterrent punishment, is retributive justice, orserves an incapacitative goal; and to study the difference in approachadopted by the judiciary (rarest of rare) and the executive (what wastermed as unknown) while granting commutation. In attempting to fulfilthis mandate, the Commission discerned an urgent need for re-examinationDof its own earlier recommendations on the death penalty (in its 35[th] Report,1967), given the drastic change in social, economic, and cultural contextsof the country since the 35[th] Report, and arbitrariness which has remaineda major concern in the adjudication of death penalty cases since BachanSingh laid down the foundational principle of ‘rarest of rare’.

E186. Reflective of changed circumstances and evolving discourse,the report marks shift in the approach towards the death penalty inIndia, going so far as to recommend abolition in all offences, exceptthose relating to terrorism. large part of the report focusses on courts’discretion and judicial reasoning when it comes to sentencing. Itconcludes that death penalty sentencing in India has been based on anFarbitrary application of the Bachan Singh principle, and has becomejudge-centric, based on the personal predilection of judges – concernwhich was alluded to even by this court in Swamy Shraddananda (2)@ Mural Manohar Mishra v. State of Karnataka[87] and analysedextensively again in Santosh Bariyar, followed by Sangeet & Anr. v.GState of Haryana[88], Mohd. Farooq Abdul Gafur & Anr. v. State of

84 (2009) 6 SCC 498 (para 112).

85 Adopted on 18.12.2007.

86 (2013) 5 SCC 546 (para 148-149).

87 (2008) 13 SCC 767H88 (2013) 2 SCC 452

Maharashtra[89], and more recently in Chhannu Lal Verma v. State ofChattisgarh[90](hereafter ‘Chhannu Lal Verma’).

The death penalty framework and how to apply it for‘principled sentencing’

187. This court in Bachan Singh while upholding theconstitutionality of capital punishment, categorically ruled that the newCrPC of 1973 marked shift as it bifurcated the criminal trial to includea pre-sentence hearing (under S. 235(2)), and further mandated thesentencing court to outline the “special reasons” (under S. 354(3)) orabsence of them, by considering circumstances both of the crime andthe criminal. The court also noted that while broad guidelines or indicatorsmay be given, they cannot be put into water-tight compartments thatcurb discretion of any judge to do justice in given individual case:

“163. ….Now, Section 235(2) provides for bifurcated trialand specifically gives the accused person right of pre-sentence hearing, at which stage, he can bring on recordmaterial or evidence, which may not be strictly relevant to orconnected with the particular crime under inquiry, butnevertheless, have, consistently with the policy underlined inSection 354(3), bearing on the choice of sentence. Thepresent legislative policy discernible from Section 235(2) readwith Section 354(3) is that in fixing the degree of punishmentor making the choice of sentence for various offences,including one under Section 302 of the Penal Code, the courtshould not confine its consideration “principally” or merely tothe circumstances connected with the particular crime, butalso give due consideration to the circumstances ofthe criminal.***

201. …As we read Sections 354(3) and 235(2) and otherrelated provisions of the Code of 1973, it is quite clear to usthat for making the choice of punishment or for ascertainingthe existence or absence of “special reasons” in that context,the court must pay due regard both to the crime and the

89 (2010) 14 SCC 641

90 (2019) 12 SCC 438

Acriminal. What is the relative weight to be given to theaggravating and mitigating factors, depends on the facts andcircumstances of the particular case. More often than not,these two aspects are so intertwined that it is difficult to givea separate treatment to each of them. This is so because “styleis the man”. In many cases, the extremely cruel or beastlyBmanner of the commission of murder is itself demonstratedindex of the depraved character of the perpetrator. That iswhy, it is not desirable to consider the circumstances of thecrime and the circumstances of the criminal in two separatewatertight compartments. In sense, to kill is to be cruel andCtherefore all murders are cruel. But such cruelty may vary inits degree of culpability. And it is only when the culpabilityassumes the proportion of extreme depravity that “specialreasons” can legitimately be said to exist.”

The court also accepted list of helpful factors of aggravatingDand mitigating circumstances.[91] However, cautioning the court fromtreating them to be exhaustive, the court further clarified that they weremerely indicative and that the mitigating circumstances had to be readin “liberal and expansive” manner, accounting for the dignity of humanlife:

E“209. There are numerous other circumstances justifying thepassing of the lighter sentence; as there are countervailingcircumstances of aggravation. “We cannot obviously feed intoa judicial computer all such situations since they areastrological imponderables in an imperfect and undulatingsociety.” Nonetheless, it cannot be over-emphasised that theFscope and concept of mitigating factors in the area of deathpenalty must receive liberal and expansive construction bythe courts in accord with the sentencing policy writ large inSection 354(3). Judges should never be bloodthirsty. Hangingof murderers has never been too good for them. Facts andGFigures, albeit incomplete, furnished by the Union of India,show that in the past, courts have inflicted the extreme penaltywith extreme infrequency — fact which attests to the cautionand compassion which they have always brought to bear onthe exercise of their sentencing discretion in so grave matter.

H91 Bachan Singh (para 202 and 206).

It is, therefore, imperative to voice the concern that courts,aided by the broad illustrative guide-lines indicated by us,will discharge the onerous function with evermore scrupulouscare and humane concern, directed along the highroad oflegislative policy outlined in Section 354(3) viz. that forpersons convicted of murder, life imprisonment is the rule anddeath sentence an exception. real and abiding concern forthe dignity of human life postulates resistance to taking lifethrough law’s instrumentality. That ought not to be done savein the rarest of rare cases when the alternative option isunquestionably foreclosed.”

188. In Macchi Singh, this court extrapolated the principles fromBachhan Singh, and merit repetition:

“38. In this background the guidelines indicated in BachanSingh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR1980 SC 898 : 1980 Cri LJ 636] will have to be culled outand applied to the facts of each individual case where thequestion of imposing of death sentence arises. The followingpropositions emerge from Bachan Singh case [(1980) 2 SCC684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ636] :

“(i) The extreme penalty of death need not be inflicted exceptin gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances ofthe ‘offender’ also require to be taken into consideration alongwith the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must be imposedonly when life imprisonment appears to be an altogetherinadequate punishment having regard to the relevantcircumstances of the crime, and provided, and only provided,the option to impose sentence of imprisonment for life cannotbe conscientiously exercised having regard to the nature andcircumstances of the crime and all the relevant circumstances.

(iv) balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doing so themitigating circumstances have to be accorded full weightage

Aand just balance has to be struck between the aggravatingand the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the followingquestions may be asked and answered:

(a) Is there something uncommon about the crime whichBrenders sentence of imprisonment for life inadequate and callsfor death sentence?

(b) Are the circumstances of the crime such that there is noalternative but to impose death sentence even after accordingmaximum weightage to the mitigating circumstances whichCspeak in favour of the offender?

40. If upon taking an overall global view of all thecircumstances in the light of the aforesaid proposition andtaking into account the answers to the questions posedhereinabove, the circumstances of the case are such that deathDsentence is warranted, the court would proceed to do so.”

189. In Machhi Singh[92], this courtalso attempted to categorisecases under broadly five heads (i.e.,manner of commission of murder,motive, anti-social or socially abhorrent nature of the crime, magnitudeof crime, and personality of victim), by strongly analysing the aggravatingEcircumstances of the crime. formalistic reliance on these categorieshowever, has the potential of leading any court awry as it has theunintended effect of drawing attention away from the criminal, andfocussing disproportionately on the crime – the dangers of thisstandardisation was also noted by this court in Swamy ShraddanandaF(2)[93], Sangeet[94] and more recently in Justice Sanjiv Khanna’s dissentingopinion in Manoharan v. State by Inspector of Police[95].

190. This court in Bachan Singh had warned against categorisingcases.[96] Rejecting the contention that standards and guidelines shouldbe laid down, it was noted in Bachan Singh that degree of culpability

G92 Machhi Singh (para 32-37).

93 Swamy Shraddananda (2) @ Mural Manohar Mishra v. State of Karnataka (2008)13 SCC 767

94 Sangeet &Anr. v. State of Haryana (2013) 2 SCC 452

95 Manoharan v. State by Inspector of Police, Variety Hall Police Station, (2019) 7 SCC716H96 para 169-175, 192-195.

cannot be measured, and aggravating and mitigating circumstances couldnot be rigidly enumerated so as to exclude “all free play of discretion”.Reiterating that criminal cases cannot be categorised as there wereinfinite, unpredictable and unforeseen variations, it was held that by suchcategorization, the sentencing process would cease to be judicial, andsuch standardisation or sentencing discretion is beyond the court’sfunction. Therefore, it would be befitting if reliance were placed notsolely on those five categories of crimes(which lays undue emphasis onaggravating circumstances) enumerated in Machhi Singh, and insteadon the two question-test, and the four guiding principles of Bachan Singhthat were succinctly culled out in Machhi Singh.191. The decades that followed, has witnessed line of judgmentsin which this court has continually taken judicial notice of the incongruencein application of the ‘rarest of rare’ test enunciated in Bachan Singh,and therefore, tried to restrict imposition of the death penalty, in an attemptto strengthen principled applicationof the same.

192. This aspect was dealt with extensively in Santosh Bariyarwhere the court articulated the test to be two-step processto determinewhether case deserves the death sentence – firstly, that the case belongsto the ‘rarest of rare’ category, and secondly, that the option of lifeimprisonment would simply not suffice. For the first step, the aggravatingand mitigating circumstances would have to be identified and consideredequally. For the second test, the court had to consider whether thealternative of life imprisonment was unquestionable foreclosed as thesentencing aim of reformation was unachievable, for which the Statemust provide material.

193. About four years later, in Sangeet[97], this court lamented thecontinuing lack of attention given to circumstances of the criminal,reiterated that balancing of aggravating-mitigating circumstances andfailure to apply the Bachan Singh sentencing framework uniformly,was leading to judge-centric and inconsistent jurisprudence in deathpenalty matters.

194. In Shankar Kisanrao Khade[98] this court developed yetanother framework of the ‘crime test’, criminal test’ and ‘rarest of

97 Sangeet &Anr. v. State of Haryana (2013) 2 SCC 452

98 Shankar KisanraoKhade v. State of Maharashtra (2013) 5 SCC 546

Arare test’ (which, was held to be distinct from the ‘balance test’ thatwas discouraged in Santosh Bariyar and subsequently, in Sangeet aswell):

“52. …. In my considered view, the tests that we have to apply,while awarding death sentence are “crime test”, “criminalBtest” and the “R-R test” and not the “balancing test”. To awarddeath sentence, the “crime test” has to be fully satisfied, thatis, 100% and “criminal test” 0%, that is, no mitigatingcircumstance favouring the accused. If there is anycircumstance favouring the accused, like lack of intention tocommit the crime, possibility of reformation, young age of theCaccused, not menace to the society, no previous track record,etc. the “criminal test” may favour the accused to avoid thecapital punishment. Even if both the tests are satisfied, thatis, the aggravating circumstances to the fullest extent and nomitigating circumstances favouring the accused, still we haveDto apply finally the rarest of the rare case test (R-R test). R-Rtest depends upon the perception of the society that is“society-centric” and not “Judge-centric”, that is, whetherthe society will approve the awarding of death sentence tocertain types of crimes or not. While applying that test, thecourt has to look into variety of factors like society’sEabhorrence, extreme indignation and antipathy to certain typesof crimes like sexual assault and murder of intellectuallychallenged minor girls, suffering from physical disability, oldand infirm women with those disabilities, etc. Examples areonly illustrative and not exhaustive. The courts award deathFsentence since situation demands so, due to constitutionalcompulsion, reflected by the will of the people and not thewill of the Judges.”

195. Recently, while considering review petition, this court inRajendra Pralhadrao Wasnik v. State of Maharashtra[99]held thatGBachan Singh had intended the test to be ‘probability’ and notimprobability, possibility or impossibility of reformation and rehabilitationas mandate of Section 354(4) CrPC.[100] The court analysed numerousearlier precedents, noting that evidence by the state on this has been

99 (2019) 12 SCC 460H100 Ibid (para 45)

sparse and limited, but was essential for the courts to measure theprobability of reform, rehabilitation and reintegration. The court locatedthis requirement in the right of the accused, who regardless of beingruthless, was entitled to life of dignity, notwithstanding his crime.[101]While this process is not easy, it was noted that the neither is the processof rehabilitation since it involves reintegration into society. When this isfound to be not possible in certain cases, longer duration of imprisonmentwas instead permissible.

Uneven application of this framework and (in)consistency insentencing

196. An overall analysis of capital punishment cases decided bythis court will perhaps reflect that that there is in fact, no pattern. Whilethere are real and valid concerns in the non-uniform application of theBachan Singh framework, discretion in sentencing, in itself – is notworrisome, and the concern needs to be dispelled.While generally judgesmay look to precedents for the comfort of numbers, that process onlygives an indication of how similar instances have been dealt with andhas limited role when it comes to sentencing. The discretion affordedto the court in sentencing, is not for it to be judge-centric or result indisparate rulings, but in fact to enable the court with the flexibility ofconsidering the case-specific factors relating to the crime and criminal,without falling into pre-determined patterns. Sentencing is not amathematical equation and ought not be seen as one. This has beenrecognized in numerous cases starting from Bachan Singh itself. InSantosh Bariyar, analyzing the equality principle, due process andproportionality requirement in capital sentencing, it was held that ratherthan applying strict classification of the type of offences that warrantdeath sentence, the court must focus on equally considering theaggravating and mitigating circumstances (in which commonality is tobe drawn across cases), and arrive at individualized sentencing outcomeson case-to-case basis.[102] It was noted:

“132. ….The imprecision of the identification of aggravatingand mitigating circumstances has to be minimised. It is to benoted that the mandate of equality clause applies to thesentencing process rather than the outcome. The comparative

101 Ibid (para 47)

102 Santosh Bariyar (para 172)

Areview must be undertaken not to channel the sentencingdiscretion available to the courts but to bring in consistencyin identification of various relevant circumstances. Theaggravating and mitigating circumstances have to beseparately identified under rigorous measure.

B133. Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580]when mandates principled precedent-based sentencing,compels careful scrutiny of mitigating circumstances andaggravating circumstances and then factoring in processby which aggravating and mitigating circumstances appearingfrom the pool of comparable cases can be compared. TheCweight which is accorded by the court to particularaggravating and mitigating circumstances may vary from caseto case in the name of individualised sentencing, but at thesame time reasons for apportionment of weights shall beforthcoming. Such comparison may point out excessivenessDas also will help repel arbitrariness objections in future. Asentencing hearing, comparative review of cases and similarlyaggravating and mitigating circumstances analysis can onlybe given go-by if the sentencing court opts for lifeimprisonment.”

(emphasis supplied)

197. The strength of ‘precedent’ and ‘consistency’ is perhaps,therefore, lowest when it comes to matters of sentencing, as long as it iswithin the confines of legality and resulting in ‘principled sentencing’. Inother words, the judicial incongruence when it relates to sentencing,Fwould in fact be positive indicator, rather than negative one, providedit is still within the well-defined contours of ‘principled’ sentencing. Forsentencing in capital offences, discretion to arrive at individualisedsentences is encouraged, but must be constrained by the ‘rarest of rare’principle, wherein the court considers aggravating circumstances of thecrime, and mitigating circumstances of the criminal (a ‘liberal andGexpansive’ construction of the latter), which in turn must inform theirconsideration of whether the option of life imprisonment is unquestionablyforeclosed owing to an impossibility[103] to reform.

103 held to be ‘probability’ and not ‘impossibility’ in Rajendra PralhadraoWasnik v.HState of Maharashtra, (2019) 12 SCC 460.

198. Deviation from this principle, i.e., unguided discretion onthe other hand, would quite obviously lead to bad law. For instance,Ravji v. State of Haryana[104] (hereafter‘Ravji’), in completecontravention of this court’s earlier constitution bench decision of BachanSingh (which focussed on both the crime, and criminal), held that “… itis the nature and gravity of the crime but not the criminal, whichare germane for consideration of appropriate punishment in acriminal trial”. line of cases[105], further relied on this (in this court’sconsidered opinion, incorrect) decision in Ravji case, and concluded thatthe nature and gravity of the crime (i.e., its brutality or heinousness),were sufficient to impose capital punishment, without consideringmitigating circumstances of the criminal. Subsequently, the decision inRavji was - quite correctly- declared to be per incuriam by anotherbench of this court in Santosh Bariyar, for non-consideration ofcircumstances of the criminal. Other cases that have focussed on brutalityof the crime, as negating or washing away the need to consider mitigatingcircumstances, similarly serve as bad precedent.

199. This court in Rajesh Kumar v. State[106 ]again reiterated thatbrutality in itself, was not enough to impose death sentence– the accusedwas convicted for murder of two children who offered no provocationor resistance to the brutal and inhuman fashion in which the accusedcommitted the crime, however, it was held that due consideration to themitigating circumstances of the criminal still had to be given. Evidencehad to be placed on record by the State, demonstrating that he wasbeyond reform or rehabilitation, the absence of which was mitigatingcircumstance in itself. The High Court had merely noted that he was afirst-time offender and had family to take care of – which this courtnoted was very narrow and myopic view on the mitigatingcircumstances.

200. Therefore, ‘individualised, principled sentencing’ – based onboththe crime and criminal, with consideration of whether reform or

104 (1996) SCC 2 175.

105 Surja Ram v. State of Rajasthan (1996) 6 SCC 271; Dayanidhi Bisoi v. State of Orissa(2003) 9 SCC 310; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561;Bantu v. State of Uttar Pradesh, (2008) 11 SCC 113; Shivaji v. State of Maharashtra,(2008) 15 SCC 268; State of Uttar Pradesh v. Sattan @ Satyendra and Ors. (2009) 4SCC 736; etc.

106 Rajesh Kumar v. State, (2011) 13 SCC 706 (para 74)

ABC

Arehabilitation is achievable (held to be ‘probable’ in RajendraPralhadraoWasnik), and consequently whether the option of lifeimprisonment is unquestionably foreclosed – should be the only factor of‘commonality’ that must be discernible from decisions relating to capitaloffences. With the creation of new sentencing threshold in SwamyShraddananda (2)[107], and later affirmed by constitution bench inBUnion of India v. V Sriharan[108], of life imprisonment without statutoryremission (i.e., Article 72 and 161 of the Constitution are still applicable),yet another option exists, before imposition of death sentence. However,serious concern has been raised against this concept, as it was upheldby narrow majority, and is left to be considered at an appropriate time.CTheories of punishment

201. The 262[nd] Report, speaks extensively to the penologicaljustification of the death penalty. It finds that there is inconclusive evidencethat this form of punishment has more of deterrent effect, in comparisonto life imprisonment. Dismissing the retributive theory of punishment onDthe ground that it suffers from lack of guidance on quantifying thepunishment that would be appropriate to impose, it categorically statesthat:

“Capital punishment fails to achieve any constitutionally validpenological goals….In focusing on death penalty as theEultimate measure of justice to victims, the restorative andrehabilitative aspects of justice are lost sight of. Reliance onthe death penalty diverts attention from other problems ailingthe criminal justice system such as poor investigation, crimeprevention and rights of victims of crime.”F202. While the 262[nd] Report recommends abolition of the deathpenalty on this ground, in addition to sentencing having become judge-centric or arbitrary, it has not prompted Parliamentary intervention.Whether the death penalty deserves relook (as recommended by J.Kurian Joseph (dissenting) in Chhannu Lal Verma), in light of the 262[nd]GLaw Commission Report, evolving jurisprudence, public discourse andinternational standards of human rights, is outside the purview of thiscourt’s jurisdiction given the constitutional bench decision in BachanSingh, and question best left for the legislature to critically consider.

107 Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767H108 (2016) 7 SCC 1

In this backdrop, what this court can do, is try and bolster the existingsentencing framework. This is possible only by giving true meaning tothe existing guidelines (without falling into the trap of ‘categorising’ crimesthat automatically warrant death penalty). To do so, this court finds itnecessary to lay out certain practical guidelines (elaborated below) thatcan facilitate consideration of mitigating circumstances as recognised inBachan Singh, and consequently ensure uniform application of thisframework.

203. The 262[nd ]Report recognised the paradigm shift, in policyand discourse, towards reformative and rehabilitative response tocrime,and the development of jurisprudence such that adjudging caseto be ‘rarest of rare’ was not sufficient, and special emphasis had to beplaced in considering whether the offender is amenable to reform. Implicitin this shift is the understanding that the criminal is not product of onlytheir own decisions, but also product of the state and society’s failing,which is what entitles the accused to chance of reformation. Thus,making life imprisonment the norm, and death penalty the exception. In,Lehna v. State of Haryana[109] while deciding whether the facts in thatcase were appropriate for death penalty, traced this shift in approach:“14. ..Section 302 IPC prescribes death or life imprisonmentas the penalty for murder. While doing so, the Code instructsthe court as to its application. The changes which the Codehas undergone in the last three decades clearly indicate thatParliament is taking note of contemporary criminologicalthought and movement. It is not difficult to discern that in theCode, there is definite swing towards life imprisonment.Death sentence is ordinarily ruled out and can only beimposed for “special reasons”, as provided in Section 354(3).There is another provision in the Code which also uses thesignificant expression “special reason”. It is Section 361.Section 360 of the 1973 Code re-enacts, in substance, Section562 of the Criminal Procedure Code, 1898 (in short “the oldCode”). Section 361 which is new provision in the Codemakes it mandatory for the court to record “special reasons”for not applying the provisions of Section 360. Section 361thus casts duty upon the court to apply the provisions ofSection 360 wherever it is possible to do so and to state

A“special reasons” if it does not do so. In the context of Section360, the “special reasons” contemplated by Section 361 mustbe such as to compel the court to hold that it is impossible toreform and rehabilitate the offender after examining the matterwith due regard to the age, character and antecedents of theoffender and the circumstances in which the offence wasBcommitted. This is some indication by the legislature thatreformation and rehabilitation of offenders and not meredeterrence, are now among the foremost objects of theadministration of criminal justice in our country.Section 361and Section 354(3) have both entered the statute-book at theCsame time and they are part of the emerging picture ofacceptance by the legislature of the new trends in criminology.It would not, therefore, be wrong to assume that the personalityof the offender as revealed by his age, character, antecedentsand other circumstances and the tractability of the offenderto reform must necessarily play the most prominent role inDdetermining the sentence to be awarded.Special reasons musthave some relation to these factors. Criminal justice dealswith complex human problems and diverse human beings. AJudge has to balance the personality of the offender with thecircumstances, situations and the reactions and choose theEappropriate sentence to be imposed.

(emphasis supplied)

204. Mitigating factors in general, rather than excuse or validatethe crime committed, seek to explain the surrounding circumstances ofthe criminal to enable the judge to decide between the death penalty orFlife imprisonment. An illustrative list of indicators first recognised inBachan Singh[110]itself:

“Mitigating circumstances.—In the exercise of its discretionin the above cases, the court shall take into account thefollowing circumstances:

G(1) That the offence was committed under the influence ofextreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, heshall not be sentenced to death.

H110 Para 206

(3) The probability that the accused would not commit criminalacts of violence as would constitute continuing threat tosociety.

(4) The probability that the accused can be reformed andrehabilitated. The State shall by evidence prove that theaccused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accusedbelieved that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination ofanother person.

(7) That the condition of the accused showed that he wasmentally defective and that the said defect impaired hiscapacity to appreciate the criminality of his conduct.”

These are hardly exhaustive; subsequently, this court in severaljudgments has recognised, and considered commutation to lifeimprisonment, on grounds such as young age[111], socio-economicconditions[112], mental illness[113], criminal antecedents[114], as relevantindicators on the questions of sentence. Many of these factors reflectdemonstrable ability or merely the possibility even, of the accused toreform (i.e. (3) and (4) of the Bachan Singh list), which make themimportant indicators when it comes to sentencing.

Pre-sentence hearing – opportunity and obligation to providematerial on the accused

205. This court in Bachan Singh held that the introduction ofpre-sentencing hearing to the accused in 1973 through Section 235(2)CrPC altered the Jagmohan Singh principle that the court is primarilyconcerned with the circumstances connected with crime. Therefore,now due consideration has to be given to the circumstances of thecriminal as well, when adjudicating whether the case falls within ‘rarestof rare’ and if the option of life imprisonment as an alternative, is

111 Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292, Gurvail Singhv. State of Punjab (2013) 2 SCC 713, etc.

112 Mulla &Anr. v. State of U.P. (2010) 3 SCC 508; Kamleshwar Paswan v. UT Chandigarh

(2011) 11 SCC 564; Sunil Gaikwad v. State of Maharashtra (2014) 1 SCC 129.

113 Shatrughan Chauhan v. Union of India (2014) 3 SCC 1

114 DilipPremnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775

Aunquestionably foreclosed. In Bachan Singh, this court categoricallystated that, “the probability that the accused would not commitcriminal acts of violence as would constitute continuing threat tothe society”, is relevant circumstance, that must be given great weightin the determination of sentence. The sentencing hearing contemplatedunder Section 235(2), is not confined merely to oral hearing but intendedBto afford real opportunity to the prosecution as well as the accused, toplace on record facts and material relating to various factors on thequestion of sentence and if interested by either side, to have evidenceadduced to show mitigating circumstances to impose lesser sentenceor aggravating grounds to impose death penalty.[115]C206. In the absence of an individual’s capacity to effectively bringforth mitigating factors, this court in Bachan Singh placed the burdenof eliciting mitigating circumstances on the court, which has to considerthem liberally and expansively, whereas the responsibility of providingmaterial to show that the accused is beyond the scope of reform orDrehabilitation, thereby unquestionably foreclosing the option of lifeimprisonment and making it is fit case for imposition of death penalty,is one which falls squarely on the State. This has been reiterated andfurther spelt out by this court in Santosh Bariyar, Rajesh Kumar,Chhannu Lal Verma, and other decisions[116]. In Santosh Bariyar, makingobservations on nature of information to be collected at the pre-sentencingEstage, this court further observed that“56. At this stage, Bachan Singh [(1980) 2 SCC 684 : 1980SCC (Cri) 580] informs the content of the sentencing hearing.The court must play proactive role to record all relevantinformation at this stage. Some of the information relating toFcrime can be culled out from the phase prior to sentencinghearing. This information would include aspects relating tothe nature, motive and impact of crime, culpability of convict,etc. Quality of evidence adduced is also relevant factor.For instance, extent of reliance on circumstantial evidenceGor child witness plays an important role in the sentencinganalysis. But what is sorely lacking, in most capital sentencing-cases, is information relating to characteristics and socio

115Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341.116Muniappan v. State of T.N. (1981) 3 SCC 11; Anil @ Anthony Arikswamy JosephHv. State of Maharashtra, (2014) 4 SCC 69, etc.

economic background of the offender. This issue was alsoraised in the 48th Report of the Law Commission.”

(emphasis supplied)

207. The state’s duty is heightened in importance even more so,in the Indian context where majority of the accused have poor orrudimentary level of legal representation. The importance of collectingsocio-economic factors in the context of our criminal justice system wascritically noted by the 262[nd] Report as follows:

“7.1.6 Numerous committee reports as well as judgments ofthe Supreme Court have recognised that the administrationof criminal justice in the country is in deep crisis. Lack ofresources, outdated modes of investigation, over-stretchedpolice force, ineffective prosecution, and poor legal aid aresome of the problems besetting the system. Death penaltyoperates within this context and therefore suffers from thesame structural and systemic impediments. The administrationof capital punishment thus remains fallible and vulnerable tomisapplication. The vagaries of the system also operatedisproportionately against the socially and economicallymarginalised who may lack the resources to effectivelyadvocate their rights within an adversarial criminal justicesystem.”

208. However, despite over four decades since Bachan Singhthere has been little to no policy-driven change, towards formulating ascheme or system that elaborates how mitigating circumstances are tobe collected, for the court’s consideration. Scarce information about theaccused at the time of sentencing, severely disadvantages the processof considering mitigating circumstances. It is clarified that mere mentionof these circumstances by counsel, serve no purpose – rather, they mustbe connected to the possibility of reformation and assist principled judicialreasoning (as required under S. 235(2) CrPC). Constrained by this lackof assistance, this court (as mentioned above) in Rajesh Kumar haseven gone so far as to hold that the very fact that the state had not givenany evidence to show that the convict was beyond reform andrehabilitation was mitigating circumstance, in itself.

209. The lack of forthcoming information has led to attempts bythe courts, to look backwards – sometimes many years after the crime

Ahas been committed – to evaluate on the one hand, circumstances thatcould not have been paused in time, and on the other those which can becaptured, but for which there exists no frame of reference from thepast, for comparison. This inconsistency in some courts calling for reports,while others fail to – further contributes to our patchwork jurisprudenceon capital sentencing, and in turn undermines the equality principle andBdue process protection that Santosh Bariyar recognises as existing, infavour of death row convicts.210. The move to call for Probation Officer’s Report[117] (asdone by this court even in this case), is in fact desperate attempt by thecourts at the appellate stage, to obtain information on the accused – atCpresent. Good conduct of the accused at the post-conviction stage inprison (through jail report), and psychiatric evaluation to evaluatepossibility of reform (albeit at the appellate sentencing stage), wereconsidered recently in Chhannu Lal Verma as necessary indicators forconsidering mitigating circumstances:D“15. …Since the appellant has been in jail, we wanted toknow whether there was any attempt on his part forreformation. The Superintendent of the jail has given acertificate that his conduct in jail has been good. Thus, thereis clear indication that despite having lost all hope, yet noEfrustration has set on the appellant. On the contrary, therewas conscious effort on his part to lead good life for theremaining period. convict is sent to jail with the hope andexpectation that he would make amends and get reformed.That there is such positive change on death row convict,in our view, should also weigh with the Court while taking aFdecision as to whether the alternative option is unquestionablyforeclosed. As held by the Constitution Bench in BachanSingh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :1980 SCC (Cri) 580] it was the duty of the State to prove byevidence that the convict cannot be reformed or rehabilitated.GThat information not having been furnished by the State atthe relevant time, the information now furnished by the State

117Birju v. State of M.P., (2014) 3 SCC 421; Anil @ Anthony Arikswamy Joseph v.State Of Maharashtra, (2014) 4 SCC 69; Bharat Singh vs. State (NCT of Delhi), OrderHdated 17.04.2014, DSR No. 1/2014.

becomes all the more relevant. The standard set by the “rarestof rare” test in Bachan Singh [Bachan Singh v. State ofPunjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] is highstandard. The conduct of the convict in prison cannot be lostsight of. The fact that the prisoner has displayed goodbehaviour in prison certainly goes on to show that he is notbeyond reform.

16.In the matter of probability and possibility of reform of acriminal, we do not find that proper psychological/psychiatric evaluation is done. Without the assistance of sucha psychological/psychiatric assessment and evaluation itwould not be proper to hold that there is no possibility orprobability of reform. The State has to bear in mind thisimportant aspect while proving by evidence that the convictcannot be reformed or rehabilitated”

(emphasis supplied)

211. However, this too, is too little, too late and only offers peekinto the circumstances of the accused after conviction. The unfortunatereality is that in the absence of well-documented mitigating circumstancesat the trial level, the aggravating circumstances seem far more compelling,or overwhelming, rendering the sentencing court prone to imposing thedeath penalty, on the basis of an incomplete, and hence, incorrectapplication of the Bachan Singh test.

212. The goal of reformation is ideal, and what society must strivetowards – there are many references to it peppered in this court’sjurisprudence across the decades – but what is lacking is concreteframework that can measure and evaluate it. Unfortunately, this is mirroredby the failure to implement prison reforms of meaningful kind, whichhas left the process of incarceration and prisons in general, to be spaceof limited potential for systemic reformation. The goal of reformativepunishment requires systems that actively enable reformation andrehabilitation, as result of nuanced policy making. As small step tocorrect these skewed results and facilitate better evaluation of whetherthere is possibility for the accused to be reformed (beyond vaguereferences to conduct, family background, etc.), this court deems itnecessary to frame practical guidelines for the courts to adopt andimplement, till the legislature and executive, formulate coherentframework through legislation. These guidelines may also offer guidance

Aor ideas, that such legislative framework could benefit from, tosystematically collect and evaluate information on mitigatingcircumstances.

Practical guidelines to collect mitigating circumstances

213. There is urgent need to ensure that mitigating circumstancesBare considered at the trial stage, to avoid slipping into retributiveresponse to the brutality of the crime, as is noticeably the situation in amajority of cases reaching the appellate stage.

214. To do this, the trial court must elicit information from theaccused and the state, both. The state, must - for an offence carryingCcapital punishment - at the appropriate stage, produce material which ispreferably collected beforehand, before the Sessions Court disclosingpsychiatric and psychological evaluation of the accused. This will helpestablish proximity (in terms of timeline), to the accused person’s frameof mind (or mental illness, if any) at the time of committing the crime andDoffer guidance on mitigating factors (1), (5), (6) and (7) spelled out inBachan Singh. Even for the other factors of (3) and (4) - an onusplaced squarely on the state – conducting this form of psychiatric andpsychological evaluation close on the heels of commission of the offence,will provide baseline for the appellate courts to use for comparison,i.e., to evaluate the progress of the accused towards reformation, achievedEduring the incarceration period.

215. Next, the State, must in time-bound manner, collect additionalinformation pertaining to the accused. An illustrative, but not exhaustivelist is as follows:Fa)Age

b)Early family background (siblings, protection of parents, anyhistory of violence or neglect)

c)Present family background (surviving family members,whether married, has children, etc.)G

d)Type and level of education

e)Socio-economic background (including conditions of povertyor deprivation, if any)

f)Criminal antecedents (details of offence and whetherHconvicted, sentence served, if any)

g)Income and the kind of employment (whether none, ortemporary or permanent etc);

h)Other factors such as history of unstable social behaviour,or mental or psychological ailment(s), alienation of theindividual (with reasons, if any) etc.

This information should mandatorily be available to the trial court,at the sentencing stage. The accused too, should be given the sameopportunity to produce evidence in rebuttal, towards establishing allmitigating circumstances.

216. Lastly, information regarding the accused’s jail conduct andbehaviour, work done (if any), activities the accused has involvedthemselves in, and other related details should be called for in the formof report from the relevant jail authorities (i.e., probation and welfareofficer, superintendent of jail, etc.). If the appeal is heard after longhiatus from the trial court’s conviction, or High Court’s confirmation, asthe case may be – fresh report (rather than the one used by the previouscourt) from the jail authorities is recommended, for an more exact andcomplete understanding of the contemporaneous progress made by theaccused, in the time elapsed. The jail authorities must also include afresh psychiatric and psychological report which will further evidencethe reformative progress, and reveal post-conviction mental illness, ifany.

217. It is pertinent to point out that this court, in Anil v. State ofMaharashtra[118] has in fact directed criminal courts, to call for additionalmaterial:

“Many times, while determining the sentence, the courtstake it for granted, looking into the facts of particular case,that the accused would be menace to the society and thereis no possibility of reformation and rehabilitation, while it isthe duty of the court to ascertain those factors, and the Stateis obliged to furnish materials for and against the possibilityof reformation and rehabilitation of the accused. The facts,which the courts deal with, in given case, cannot be thefoundation for reaching such conclusion, which, as alreadystated, calls for additional materials. We, therefore, direct that

the criminal courts, while dealing with the offences likeSection 302 IPC, after conviction, may, in appropriate cases,call for report to determine, whether the accused could bereformed or rehabilitated, which depends upon the facts andcircumstances of each case.”

(emphasis supplied)

We hereby fully endorse and direct that this should be implementeduniformly, as further elaborated above, for conviction of offences thatcarry the possibility of death sentence.

Sentencing of present accusedC

218. This court is of the opinion, that there can no doubt that thecrime committed by the three accused was brutal, and grotesque. Thethree defenceless victims were women of different age groups (22, 46,76 years) who were caught off-guard and severely physically assaulted,resulting in their death, in the safety and comfort of their own home. ToDhave killed three generations of women from the family of PW-1, iswithout doubt, grotesque. The manner of the offence was also viciousand pitiless – Ashlesha and Rohini, were stabbed repeatedly to theirdeath, while Megha was shot point blank in the face. The post-mortem(Ex. P44) reflects that the stab wounds were extensive – ranging acrossEthe bodies of the victim. The extensive bleeding at the crime scene furtherreflects cruel and inhumane manner of attack, against the three women.The crime in itself, could no doubt be characterised as “extremely brutal,grotesque, diabolical, revolting or dastardly manner so as to arouseintense and extreme indignation of the community”[119] as defined inMachhi Singh. These are the aggravating circumstances.F219. On an application of the Bachan Singh test (as clarified andexplained, in numerous decisions elaborated above), however, themitigating circumstances need to be considered (and that too, liberallyand expansively). Prior to the hearing on sentencing before this court, adirection was issued the State to (on the basis of personal interviewsGand prison records) file for each of the accused – PsychologicalEvaluation Report, Probation Officer’s Report, and Prison Reportincluding material on their conduct and work done. Furthermore, eachof the accused has placed material on record before this court, to

demonstrate circumstances of the criminal. Given that in this case thereare three accused – this court cannot baldly consider their circumstancescollectively, and instead find that an individualised approach is necessary.

(i) Manoj

220. The material states that Manoj’s conduct appears to bedisciplined, correctional in nature and overall satisfactory, barring onephysical altercation during an earlier confinement period. He has wifeand two young children with whom he has repaired relations and isregularly in touch with. He makes special effort to be part of his growingchildren’s lives, demonstrating strong continued family ties. While in prison,owing to his interest in cricket, he has also taken up the responsibility ofbeing the Captain of the Jail Block team. The probation officer concludesthat he seems remorseful, and keen to reintegrate into society with hisfamily.

(ii) Rahul

221. The report received from the Superintendent of Jail indicatesthat he too was involved in an altercation with another inmate in hisprevious confinement period, but his overall conduct appears to be normal,and correctional in nature. He has been voluntarily working as healthworker (based on his request) since 05.01.2021 wherein he helpstransports sick inmates to the Jail Hospital. While in prison, he hascompleted 12[th] standard education, and proceeded to pursue B. Comfrom IGNOU, New Delhi (in his final year). He actively participates incultural and spiritual programmes conducted in the prison. His familyconsists of his ailing father, mother, and three married sisters. Heexpressed concern for his old parents and wished to help them financiallyby rejoining society.

(iii) Neha

222. Her prison record reflects that she had, on few occasions,got into fights and exchanged abuses with the other female inmates, andlady guard officers in the jail. After counselling, however, her conducthas improved and was found to be disciplined and corrective in nature.While in prison, she actively participates in cultural programmes, hasundergone training for embroidery, knitting and lamination. In 2017, shereceived national award for Jardosi work in Indore District Court andhas received numerous other accolades for her participation in activities.In prison, she teaches children of other female inmates. Before detention,

Ashe was pursuing her B. Com degree, which she completed in prison.Her family consists of her parents and two married brothers (of whichone, is paralysed), who she is regularly in touch with.

Conclusion on sentence of the three accused

223. It is unfortunate to note that both the trial Court, and HighBCourt, failed to provide an effective sentencing hearing to the accused,at the relevant stage, which is right under Section 235(2) CrPCrecognised by this court in several cases.[120] In fact, it was argued by theaccused that the trial court in contravention of this court’s judgments[121],had proceeded to hear on sentencing almost immediately, depriving theCaccused of the opportunity to put forth their case for less stringentsentence. The trial court order on sentencing, records in passing - theplea of ‘young age’ and ‘socio-economic factors’ as mitigatingcircumstances, but reflects, at best, mechanical consideration of thesame. Swayed by the brutality of the crime and “shock of the collectiveand judicial conscience”, the High Court affirmed imposition of the deathDpenalty solely on the basis of the aggravating circumstances of the crime,with negligible consideration of mitigating circumstances of the criminal.This is in direct contravention of Bachan Singh.

224. The crime that the appellants have been held guilty of, isheinous; its execution was vicious and cruel, by any stretch of imagination.EThe deception practised by the appellants, in entering the flat, and, whenencountering resistance, attacking the three women, was calculated andruthless. The repeated stabbings of two of the deceased, almost in afrenzy, on the one hand, and the defenceless state of the victims, on theother, highlights that the accused were willing to go ahead with theirFplans (of robbing) after eliminating the women of three generations. Nodoubt, two of the victims appear to have put up resistance, if one looks

120 Bachan Singh (para 152), Md. Mannan @ Abdul Mannam v. State of Bihar (2019) 16SCC 584 (para 39), Allaudin Mian v. State of Bihar (1989) 3 SCC 5 (para 10),RameshbhaiChandubhai Rathod v. State of Gujarat (2009) 5 SCC 740 (para 106),GRajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706 (para 52), Mukesh vv. State(NCT of Delhi) (2017) 3 SCC 717 (para 9), Chhannulal Verma v. State of Chhattisgarh(2019) 12 SCC 438 (para 17).

121 Santa Singh v. State of Punjab (1967) 4 SCC 190 (para 3, 4, 5, 7); Allaudin Mian v.State of Bihar (1989) 3 SCC 5 (para 10); Rajesh Kumar v. State (2011) 13 SCC 706(para 52); Ajay Pandit @ Jagdish v. State of Maharashtra (2012) 8 SCC 43 (para 38,H47).

at the stab wounds inflicted all over their bodies, including on their armsand faces. Yet, they were unarmed and weak.

225. At the same time, the young age of the accused at the timeof the incident (35, 20, 22 respectively) and lack of criminal antecedents(except in the case of Manoj, who was allegedlyinvolvedin case ofpetty theft) cannot be lost sight of. Further, the prosecution case is silenton any real motive that may have instigated or moved the three accusedto have pre-planned for the commission of murder – other than robbery,itself. This coupled with the fact that Rahul was shot in his leg during thecommission of the crime, indicates that perhaps it is reasonable to assumethat they were amateurs in robbing-gone-wrong situation, who werenot intent on taking the lives of these three women. One can surmisethat having ventured to rob, perhaps they did not contemplate the kind ofresistance that was put up by the victims, which led them to act the waythey did, to continue with their plan, and ensure that the victims did notsurvive to tell the tale.226. The reports received from the Superintendent of Jail reflectthat each of the three accused, have record of overall good conduct inprison and display inclination to reform. It is evident that they have already,while in prison, taken steps towards bettering their lives and of thosearound them, which coupled with their young age[122 ]unequivocallydemonstrates that there is in fact, probability of reform. Onconsideration of all the circumstances overall, we find that the option oflife imprisonment is certainly not foreclosed.

227. While there is no doubt that this case captured the attentionand indignation of the society in Indore, and perhaps the state of MadhyaPradesh, as cruel crime that raised alarm regarding safety within thecommunity – it must be remembered that public opinion has categoricallybeen held to be neither an objective circumstance relating to crime, northe criminal, and the courts must exercise judicial restraint and play abalancing role.[123]

122 Gurvail Singh &Anr v. State of Punjab (2013) 2 SCC 713 (para 13, 19); Amit v. Stateof Uttar Pradesh (2012) 4 SCC 107 (para 22); Shyam Singh @ Bhima v. State ofMaharashtra (2017) 11 SCC 265 (para 8) and Ramnaresh&Ors. v. State of Chhattisgarh

(2012) 4 SCC 257 (para 88).

123 Chhannu Lal Verma (para 25), Santosh Bariyar (para 80-89), M.A Antony @ Antappanv. State of Kerala, (2020) 17 SCC 751, Bachan Singh (para 126).

[2022] 9 S.C.R.

A228. In view of the totality of facts and circumstances, and forthe above stated reasons, this court finds that imposition of death sentencewould be unwarranted in the present case. It would be appropriate andin the overall interests of justice to commute the death sentence of allthree accused, to life imprisonment for minimum term of 25 years.BThe appeals are partly allowed in the above terms.

Bibhuti Bhushan Bose(Assisted by : Neha Sharma, LCRA)

Appeals partly allowed.